2017 Investigative Summary 9

Investigation of Alleged Failure to Comply With Discovery; Failure to Keep the Client Informed

A DOJ component advised OPR that for approximately three years, a DOJ attorney was dating a law enforcement officer who was involved in cases that were prosecuted by the DOJ attorney and the DOJ component. In one prosecution in which the officer testified at trial, the DOJ attorney failed to disclose the relationship to the defense, the court, and her supervisors.

In a second prosecution, prior to trial, the DOJ attorney first spoke to a supervisor, and then advised the DOJ supervisor of her relationship with the officer. The DOJ component decided that the officer should not testify at the trial and that an ex parte sealed disclosure should be made to the court. The court concluded that disclosure of the relationship to the defense was not required.

The officer was also the affiant on a wiretap application that resulted in the prosecution of several other cases involving multiple defendants, and the DOJ attorney represented the government during plea hearings in a number of those cases. OPR initiated an inquiry into the DOJ attorney’s conduct, and into the handling of the matter by the attorney’s supervisor. OPR later converted the matter into an investigation. 

OPR concluded that, although a close question, the DOJ attorney did not commit professional misconduct when she failed to disclose to the defense in the first prosecution her relationship with the officer. Rather, OPR concluded that the DOJ attorney exercised extremely poor judgment when she failed to disclose the relationship to the court in camera to afford it an opportunity to determine whether the relationship should be disclosed to the defense.

OPR further concluded that the DOJ attorney engaged in professional misconduct, by acting in reckless disregard of her obligation to keep her client reasonably informed, when she failed to disclose to the component’s management before the trial in the first prosecution that she was involved in a relationship with the officer. Her failure to disclose the relationship precluded the DOJ component from making informed decisions regarding the cases that she was handling. 

In addition, the recollections of the DOJ attorney and her supervisor regarding certain communications they engaged in about the DOJ attorney’s relationship with the officer were starkly different and, because of the passage of time, OPR could not reconcile them or determine which version was more accurate. Nevertheless, OPR concluded that the DOJ attorney should have taken greater efforts to ensure that her supervisors clearly understood the parameters of her relationship with the officer as it evolved before, during, and after the first and second trials.

OPR further concluded that the supervisor should have directly and clearly communicated with the DOJ supervisor when the supervisor first learned of the disclosure issues after the first trial. The supervisor also should have directly and clearly communicated with the DOJ supervisor in relation to the second trial, so that the DOJ component’s management could have at all pertinent times addressed the issues with the court in a timely manner.

OPR referred its findings to the PMRU. OPR referred its criticism of the supervisor to the DOJ component to handle in a management context as a performance issue. The PMRU upheld OPR’s findings of professional misconduct and concluded that a letter of reprimand was the appropriate discipline, and directed OPR to refer its finding of professional misconduct to the appropriate state bar disciplinary authority