2015 Investigative Summary 7

Investigation of Alleged Failure to Comply With DOJ Policy

OPR received allegations that a DOJ attorney unjustly filed an application for a criminal complaint against two attorneys. In the course of an investigation, the grand jury issued a subpoena for documents in the possession of the attorneys' client, who was not a target of the investigation. Following the attorneys' motion to quash, the magistrate judge issued an order requiring production of the documents but allowing the attorneys to make certain redactions. After the attorneys produced the documents with more redactions than the court's instruction allowed, the DOJ attorney requested that the attorneys appear in court with the documents in unredacted form accompanied by an individual who could authenticate the material.

Rather than appear in court, the attorneys filed a motion for a protective order. Thereafter, the DOJ attorney brought an application for a criminal complaint charging the attorneys with conspiring to alter and conceal records. The magistrate judge signed the complaint, issued a summons for the attorneys to appear, and scheduled a hearing to address both the complaint and the protective order. After management was made aware of the matter, the government promptly moved to dismiss the complaint.

OPR conducted an investigation and concluded that in filing the application for a criminal complaint, the DOJ attorney committed professional misconduct by acting in reckless disregard of her obligations under DOJ policy because:

(1) she did not have an objectively reasonable belief that the admissible evidence would probably be sufficient to obtain and sustain a conviction;

(2) she did not have an objectively reasonable belief that the charges were supported by probable cause;

(3) she did not reasonably or adequately consider whether a substantial federal interest would be served by prosecution, or whether adequate non-criminal alternatives to prosecution existed;

(4) she failed to secure appropriate approval to file the complaint application.

OPR further concluded that the DOJ attorney committed professional misconduct by acting in reckless disregard of her obligations to keep her client reasonably informed, and by failing to explain the matter to her supervisor to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Finally, OPR concluded that the DOJ attorney exercised poor judgment by failing to avoid the appearance of a loss of impartiality. OPR did not determine whether the DOJ attorney committed professional misconduct by knowingly filing a complaint lacking probable cause.

Although the facts supported a conclusion that the DOJ attorney knew that the complaint lacked probable cause, case law was not sufficiently clear for OPR to reach such a conclusion under the unique circumstances presented
in this case. Nevertheless, OPR concluded that the DOJ attorney exercised extremely poor judgment by filing a complaint lacking probable cause. OPR referred its misconduct findings to the PMRU, which upheld OPR's findings and imposed a 14-day suspension without pay.

attorney exercised extremely poor judgment by filing a complaint lacking probable cause. OPR referred its misconduct findings to the PMRU, which upheld OPR's findings and imposed a 14-day suspension without pay.