2022 Investigative Summary 1

Investigation of Alleged Conflict of Interest, Failure to Advise the Client, and Failure to Comply with Discovery Obligations

A U.S. Attorney’s Office (USAO) advised OPR that it had discovered that in order to further his personal interest in a government trial witness, an Assistant U.S. Attorney (AUSA) assigned as the lead prosecutor had communicated with the witness shortly before trial using a social media platform and failed to disclose his personal communications with the witness to the defense or anyone at the USAO.  During its investigation into this matter, OPR also determined that potentially discoverable information provided by the same witness at a pretrial witness conference attended by the lead prosecutor and his co-counsel was also not disclosed to the defense. 

Based on the results of its investigation, OPR concluded that the lead AUSA committed intentional professional misconduct in violation of his obligations under Rules of Professional Conduct (RPC) 1.7 and 1.4 when he knowingly continued to represent the government in the case despite a conflict of interest that arose from his personal interest in the government witness and without obtaining his client’s consent to his continued prosecution of the case, and by knowingly failing to inform his client of his personal interest in the witness and of his pretrial communications with the witness to further that interest.  Further, OPR concluded that the lead AUSA committed intentional professional misconduct in violation of his discovery obligations when he knowingly failed to disclose to the defense his pretrial communications with the witness.  

Additionally, OPR concluded that the lead prosecutor and his co-counsel did not commit professional misconduct when they failed to disclose to the defense other potentially discoverable information obtained from the witness during the pretrial conference because the information was not required to be disclosed under the applicable discovery obligations.  However, OPR found that the AUSAs exercised poor judgment in failing to consider whether to disclose the information obtained from the witness during the conference and ultimately by failing to disclose it. 

OPR referred the matter concerning the lead AUSA’s communications with the witness to the Professional Misconduct Review Unit.  The lead AUSA resigned from the Department during OPR’s investigation