DEPARTMENT OF

JUSTICE

Information on the

Office of Professional

Responsibility’s

Operations

United States General Accounting Office

GAO Report to Congressional Requesters

August 2000

GAO/GGD-00-187

United States General Accounting Office General Government Division

Washington, D.C. 20548

Page 1 GAO/GGD-00-187 Office of Professional Responsibility’s Operations

B-284828

August 14, 2000

The Honorable Henry J. Hyde

Chairman, Committee on the Judiciary

House of Representatives

The Honorable William D. Delahunt

House of Representatives

The Department of Justice (Justice) states that its attorneys should be held

to the highest ethical standards. Members of Congress, judges, and the

media have voiced concerns about the professionalism and conduct of

certain Justice attorneys over the past several years. Concerns have also

been raised about the process for holding Justice’s attorneys accountable

to ethical standards. Because of these concerns, you asked us to review

Justice’s Office of Professional Responsibility (OPR), which is responsible

for investigating allegations of misconduct involving Justice attorneys

relating to the exercise of the attorneys’ authority to investigate, litigate, or

provide legal advice. This report responds to your request that we

determine:

• how OPR conducts its inquiries into allegations of misconduct by Justice

attorneys;

• to what extent OPR’s workload, as well as budget, have changed;

• the possible range of disciplinary actions and procedures if employee

misconduct is found;

• OPR’s oversight relationship with similar offices in other Justice

components; and

• the degree to which OPR has implemented our prior recommendations.

In addition, you asked us to provide information on how OPR is

monitoring and implementing what are commonly referred to as the Hyde

Attorneys Fees Amendment1

 and the Citizens Protection Act.2 The Hyde

Amendment, in general, allows prevailing parties in criminal cases to

recover reasonable attorneys’ fees where the court finds the position of the

United States to be frivolous, vexatious, or in bad faith. Under the Citizens

 

1

Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act,

1998, Public Law 105-119, 111 Stat. 2519, section 617.

2

Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Public Law 105-277,

Div. A, 112 Stat. 2681-118, section 801.
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Protection Act, in general, Justice’s litigators are subject to certain ethical

standards of the state where they conduct their activities.

With regard to how OPR conducts its inquiries of allegations of

misconduct involving Justice attorneys, OPR normally is to initially notify

the attorney of the allegations and request a written response to the

charges. On the basis of the response, OPR is then to determine whether

further investigation is necessary or if the matter can be closed. If further

investigation is determined to be warranted, OPR is to interview relevant

individuals and analyze necessary documentation. After completing its

investigation, OPR is to prepare a report of its findings and, if appropriate,

include a recommended range of possible disciplinary actions. If the

matter appears to involve a violation of a criminal law, OPR is to refer the

matter to Justice’s Public Integrity Section or the appropriate U.S.

Attorney’s office. On the basis of our limited review of case files and

discussions with OPR officials, it appears that OPR is following its

procedures and internal controls for conducting inquiries into allegations

of misconduct by Justice attorneys.

With respect to OPR’s workload, the number of authorized staff has

remained fairly level at 33 to 35 over the past 4 fiscal years. The on-board

staffing levels during this same period, however, have fluctuated from 29

to 34. The authorized funding levels have risen from $3.8 million in 1997 to

$4.2 million in 2000, in constant 1999 dollars. The average time OPR spent

on each investigation for which it substantiated allegations of misconduct

was 9.3 months in fiscal year 1997 and 9.9 months in fiscal year 1998. The

average time to complete investigations rose above the 12-month level in

fiscal year 1999, to 14.5 months. Of the 15 investigations it closed during

the first half of fiscal year 2000, OPR completed 5 within 12 months.

Administrative disciplinary actions that can be taken when professional

misconduct is found can range from an oral reprimand to termination of

employment, depending on the circumstances of each case, such as the

nature and severity of the offense and the experience level of the subject

attorney. Justice OPR does not impose final disciplinary actions; rather, it

recommends a range of disciplinary actions when its investigations

substantiate that attorneys engaged in professional misconduct. It is the

responsibility of the head of the office where the attorney works to impose

final disciplinary action and report to OPR on what action was taken. The

head of the office must get approval from the Deputy Attorney General

should he or she want to impose a disciplinary action either more or less

severe than the range of disciplinary actions recommended by OPR. For

professional misconduct cases substantiated by OPR from fiscal year 1997

Results in Brief
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through the first half of 2000, the final disciplinary actions taken deviated

from OPR’s recommended range about 26 percent of the time. Half of the

actual disciplinary actions imposed, in those cases, were more severe than

OPR’s recommended range, and half were less severe.

Justice OPR is also responsible for overseeing, on behalf of the Attorney

General, the operations of similar offices in two other Justice components,

the Drug Enforcement Administration (DEA) and the Federal Bureau of

Investigation (FBI). These agencies have established their own OPRs,

which are tasked with investigating allegations of misconduct by

employees in their respective agencies. Justice OPR monitors the

investigative and other activities of these offices through the receipt of

contemporaneous reports and communications from FBI and DEA

officials. Justice OPR also relies on FBI and DEA monthly status reports

which show the number of matters opened and the disposition of closed

matters, to stay abreast of their activities.

OPR has taken action to implement our prior recommendations. In

response to recommendations in our 1992 report,3

 OPR has established

written investigative procedures. In response to the findings contained in

our 1994 report,4

 the Attorney General issued an order clarifying the

jurisdiction for both OPR and Justice’s Office of the Inspector General

(Justice OIG).

With respect to Hyde Amendment cases, OPR reviews monthly Justice

reports on such claims for fees to determine whether there are any matters

that should be investigated. At the time of our review, nine matters were in

various stages of investigation or inquiry and one had been closed by OPR

on June 11, 2000. Regarding implementing the Citizens Protection Act,

OPR evaluates the subjects’ conduct by applying the most stringent rules

of either the state bar association where the subject is licensed or the state

where the case took place.

In a letter dated July 28, 2000, OPR’s Deputy Counsel stated that Justice

had no comments on the substance of our report. However, she provided

some technical comments, which we incorporated where appropriate.

The Attorney General created OPR in December 1975 to help ensure that

Justice employees continue to uphold high ethical standards. Until 1994,

 3

Employee Misconduct: Justice Should Clearly Document Investigative Actions, (GAO/GGD-92-31, Feb.

7, 1992).

4

Office of General Counsel Opinion (GAO/OGC-94-24, Apr. 15, 1994).

Background
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OPR conducted investigations into allegations of misconduct by any

Justice employee. Following the appointment of a permanent Inspector

General in 1990, jurisdictional disputes developed and cooperation

between OPR and Justice’s OIG declined.

To resolve these disputes, the Attorney General issued Justice Order 1931-

94 on November 8, 1994, to clarify the respective jurisdictions of OPR and

OIG. As defined in that order, OPR has jurisdiction to investigate

allegations of professional misconduct involving Justice attorneys.

Attorney General Order 1931-94 also gave OPR jurisdiction to investigate

allegations of misconduct by law enforcement personnel when they are

related to allegations of misconduct by attorneys within OPR’s jurisdiction.

To determine how OPR investigates allegations of misconduct, we

reviewed

• documents describing OPR investigative policies and procedures, such as

OPR’s Analytical Framework;

• OPR Annual Reports for fiscal years 1997 and 1998;

• case files and database printouts from OPR’s internal case management

systems; and

• applicable laws and regulations.

We also discussed OPR investigative procedures and clarified related

issues with OPR officials.

To determine the degree to which OPR’s workload and budget have

changed, we reviewed budgetary and staffing information from OPR

officials and Justice’s fiscal year 2001 budget submission. Information on

OPR performance measures and workload statistics was obtained from

Justice’s Fiscal Year 2001 Summary Performance Plan, Justice’s fiscal year

2001 budget submission, and OPR officials responsible for maintaining

workload statistics.

To identify the possible range of disciplinary actions and procedures if

employee misconduct is found, we reviewed (1) regulations and policies

on Justice’s disciplinary processes, including Human Resources Order

1200.1, on Discipline and Adverse Actions; and (2) general guidelines for

disciplining attorneys, such as the Model Rules for Lawyer Disciplinary

Enforcement published by the American Bar Association (ABA). We also

discussed the process for disciplining Justice attorneys with Justice OPR

officials.

Scope and

Methodology
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To determine Justice OPR’s oversight relationships with similar offices in

other Justice components, we discussed relevant issues with officials from

Justice, FBI, and DEA OPRs, as well as Justice’s OIG. In addition, we

reviewed procedures, statistics, and reports on investigative activities

published by relevant Justice components to compare organizational and

procedural differences with Justice OPR’s counterparts.

To determine the extent to which OPR has implemented our prior

recommendations, we reviewed our relevant reports. We also reviewed

two 1998 Justice OIG reports concerning travel abuses by certain OPR

attorneys. We then interviewed OPR officials to obtain their views on how

they had implemented our prior and OIG recommendations, reviewed

applicable regulations issued by OPR in response to these reports, and

performed separate reviews of OPR’s case files and internal case

management system in order to determine the degree to which OPR had

implemented our prior recommendations.

To determine OPR’s efforts relative to the Hyde Amendment and the

Citizens Protection Act, we

• reviewed the respective statutes;

• held discussions with OPR officials on OPR’s role in implementing these

provisions;

• reviewed regulations promulgated pursuant to these statutes;

• reviewed OPR documentation and correspondence related to

implementation of these provisions; and

• discussed the impacts of these laws and provisions with external

organizations, such as the ABA.

We performed our work from January to July 2000 in accordance with

generally accepted government auditing standards. We requested

comments on a draft of this report from the Attorney General or her

designee. OPR’s Deputy Counsel responded in a letter dated July 28, 2000,

which we discuss at the end of this report.

Generally, we relied on the workload statistics, such as the numbers of

complaints received, provided to us by OPR. In reviewing how OPR

conducts its investigations, we did not directly observe how OPR

employees perform their investigative duties, nor did we reinvestigate

closed OPR matters. However, we reviewed a limited number of case files

to determine (1) whether required documentation was included to indicate

what had been done during the investigations, (2) who had been

interviewed, and (3) what conclusions had been reached by OPR. From a

Data Accuracy and

Reliability
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list of 698 closed cases handled by OPR attorneys during fiscal years 1997

through 1999, we reviewed 8 randomly selected cases. The results of these

case reviews are not projectible to the universe of closed cases. To

demonstrate the types of matters handled by OPR’s program analysts, OPR

officials provided us with an additional 16 cases closed during the same

period. We also reviewed a printout summary from OPR’s case

management database for all of the investigations in which OPR

substantiated the allegations of misconduct for fiscal year 1997 through

the first half of fiscal year 2000.5

On the basis of our limited review of case files and discussions with OPR

officials, it appears that OPR is following its procedures and internal

controls for conducting inquiries into allegations of misconduct by Justice

attorneys. Generally, the files that we reviewed included sufficient

documentation, although varying in degrees of organization, to allow one

to understand what had been done during the investigation, who had been

interviewed, and what conclusions were reached by OPR.

Under OPR’s investigative procedures, upon receiving a written complaint

alleging misconduct, a program analyst is to make a preliminary

determination as to whether the allegations fall within OPR’s jurisdiction

and an inquiry is warranted, or whether it should be closed

administratively. A complaint may be closed administratively if, for

example, it

• should be referred to another Justice component, for example, OIG or the

FBI’s OPR;

• should be consolidated with another matter already open;

• lacks sufficient evidence to warrant an inquiry; or

• involves issues still before the courts.

OPR’s Deputy Counsel is to review and approve any determination made

by a program analyst to close a matter administratively.

If the complaint involves matters that appear to be a violation of a criminal

law, OPR is to refer the matter to Justice’s Public Integrity Section or the

appropriate U.S. Attorney’s office. If a complaint is within OPR’s

jurisdiction and an inquiry is warranted, the matter is to be assigned to an

OPR Assistant Counsel. The Assistant Counsel is to notify the subject of

the allegations and request a written response to those allegations. On the

basis of the subject’s written response, the Assistant Counsel handling the

 

5

Fiscal year 2000 data are as of March 31, 2000.

How OPR Conducts

Inquiries Into

Allegations of

Misconduct

OPR’s Investigative

Procedures
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matter can either (1) close the matter as unsubstantiated with a written

memorandum to the file or (2) determine that additional information is

needed to resolve the matter and convert the inquiry to a full investigation.

According to OPR officials, the decision to convert an inquiry to an

investigation is approved by the Deputy Counsel. Further, the decision to

close an inquiry or investigation is approved by both the Counsel and

Deputy Counsel in OPR.

According to OPR officials, when a full investigation is warranted, the

Assistant Counsel is to conduct interviews of the subject, complainant, any

witnesses, and others as deemed appropriate. The Assistant Counsel is

also to collect and review any documentation submitted by the parties

involved. On the basis of this investigation, the Assistant Counsel is to

prepare a report of the findings in the matter. The Counsel and the Deputy

Counsel review and approve the report. If the allegations are substantiated

as professional misconduct, OPR is to recommend a range of disciplinary

actions to the head of the office where the subject works, who in turn is

responsible for deciding what final disciplinary actions are taken.

See appendix I for a flowchart that outlines OPR’s general process for

handling complaints alleging misconduct.

OPR’s budget for fiscal year 2000 authorized 35 staff positions—21

attorneys and 14 support staff (e.g., program analysts, paralegals, and

clerical staff) to carry out its responsibilities for investigating allegations

of misconduct against Justice attorneys. As of March 31, 2000, OPR had 31

staff on board—18 attorneys and 13 support staff (4 program analysts, 3

paralegals, 2 Freedom of Information Act specialists, 1 computer

specialist, and 3 administrative support staff). In constant dollars, OPR’s

authorized funding has remained fairly stable from fiscal year 1997 to fiscal

year 2000. Table 1 shows OPR’s authorized and actual staffing levels and

authorized funding levels since fiscal year 1997.

Fiscal year

Budget 1997 1998 1999 2000a

Staffing levels

Authorized 33 35 35 35

Actual 29 31 34 31

Authorized funding (in millions) $3.7 $4.1 $4.3 $4.3

Funding in constant 1999 dollars (in millions) $3.8 $4.2 $4.3 $4.2

a

Actual staffing level is as of March 31, 2000.

Source: OPR and Gross Domestic Product Price Index.

OPR’s Budget and

Workload Statistics

Table 1: OPR’s Authorized and Actual

Staffing and Funding Levels
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Over the past 3 fiscal years, OPR has received about 1,000 complaints each

year of alleged misconduct by Justice personnel. About half of the

complaints received were handled by OPR’s program analysts and were

closed administratively for reasons such as

• the allegations of misconduct did not fall within OPR’s jurisdiction,

• the allegations lacked sufficient evidence to warrant an inquiry, or

• the allegations involved issues that were still before the courts.

Table 2 shows the number of complaints received by OPR for the last 3 full

fiscal years and the first half of fiscal year 2000, and the disposition for the

closed investigations.

Fiscal year

Number of matters 1997 1998 1999 2000a

Complaints received 1,085 982 1,340 506

Investigations opened 98 77 88 58

Investigations closed 124 83 63 47

Of the closed investigations, number in which

“professional misconduct”b was found 20 12 12 5

Of the closed investigations, number in which

OPR found the Justice attorney exercised

“poor judgment”c (lesser offense) 16 15 12 12

Number of complaints handled by OPR

attorneys as inquiries or miscellaneous

matters (not investigations), and closed 370 468 428 149

Number of matters handled by OPR program

analysts as miscellaneous matters and closed 579 409 776 303

a

Fiscal year 2000 data are as of March 31, 2000.

b OPR officially recognizes professional misconduct at two levels: intentional misconduct or reckless

disregard. According to OPR, “an attorney engages in intentional misconduct when (1) the attorney

acts with the purpose of violating an obligation imposed by law, applicable rule of professional

conduct, or department policy or regulation or (2) acts knowing that the natural and probable

consequences of his or her action is to violate the obligation. An attorney acts in reckless disregard of

an obligation when the attorney (1) knows or should know of the obligation, (2) knows or should know

that his or her conduct involves a substantial likelihood that the obligation will be violated, and (3)

nonetheless engages in the conduct, which is objectively unreasonable under the circumstances.”

c OPR defines poor judgment as when an attorney is faced with alternative courses of actions, the

attorney chooses a course of action that is in marked contrast to the action that the department may

reasonably expect an attorney exercising good judgment to take.

Source: OPR.

Complaints of misconduct allegations may be received from a variety of

sources, such as judges, opposing attorneys, other department personnel,

or private citizens. Table 3 shows the sources of the complaints for the

investigations that OPR opened during fiscal year 1997 through the first

half of fiscal year 2000.

Number of Complaints

Received

Table 2: Number of Complaints

Received by OPR During Fiscal Years

1997 to 2000

Sources of Complaints
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Fiscal year

Source of complaint 1997 1998 1999 2000a

Justice employees or components 42 29 11 15

Judicial findings or criticism 32 28 53 33

Private attorneys 10 10 14 4

Private parties 7 5 7 3

Other federal, state, or local agencies 5 5 2 1

Congressional referrals 1 0 0 0

Inmates 1 0 1 2

Total 98 77 88 58

a

Fiscal year 2000 data are as of March 31, 2000.

Source: OPR.

Over the years, OPR has developed codes to categorize the allegations for

reporting purposes in its case tracking system. A complaint can contain

more than one allegation of misconduct. For example, a complainant may

write to OPR that an Assistant United States Attorney (AUSA) improperly

disclosed information about a case to the media, that he misrepresented

information during the trial, and that he made improper remarks during

closing arguments. In this instance, the allegations would be coded by OPR

as unauthorized disclosure of confidential, including grand jury,

information; misrepresentation to the court and/or opposing counsel; and

improper remarks to a grand jury, during trial, or in pleadings. Table 4

shows the types of allegations received for the investigations that OPR

closed from fiscal year 1997 through the first half of fiscal year 2000.

Type of allegations Investigations Inquiries

Fiscal year Fiscal year

1997 1998 1999 2000a1999b2000a

Abuse of authority, including abuse of prosecutorial discretion 43 44 35 14 44 37

Unauthorized disclosure of confidential, including grand jury, information 15 13 12 4 9 16

Misrepresentation to the court and/or opposing counsel 25 21 13 5 3 9

Improper remarks to a grand jury, during trial, or in pleadings 12 10 23 19 0 6

Failure to comply with court orders or federal rules 2 12 8 6 0 1

Conflict of interest 16 3 7 2 6 5

Failure to perform/dereliction of duty 20 15 12 3 7 18

Failure to comply with certain federal requirements regarding the discovery

and disclosure of evidence 11 12 8 12 3 4

Failure to comply with DOJ rules and regulations 3 4 6 3 11 7

Subornation of perjury/failure to correct false testimony 5 3 6 3 3 5

Fitness to practice law 10 4 3 4 4 7

Interference with defendant’s rights 2 1 3 0 2 7

Otherc 7 8 8 4 2 6

Total 171 150 144 79 94 128

a

Fiscal year 2000 data are as of March 31, 2000.

Table 3: Sources of Complaints for

Investigations Opened by OPR

Types of Allegations

Table 4: Types of Allegations for Investigations Closed by OPR
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b

The inquiries database was not implemented until July 1999.

c

Includes instances of failure to comply with civil discovery; improper contact with represented parties;

unauthorized practice of law; lateness (i.e., missing filing dates); and failure to comply with

congressional discovery request.

Source: OPR.

As shown in table 3, one of the major sources of complaints of misconduct

is judicial findings or criticisms. Specifically, during trial proceedings, a

judge could admonish an AUSA for improper conduct. A judge could also

contact the U.S. Attorney in that district, who would then refer the matter

to OPR. In some cases, the judge might contact OPR directly.

Transcripts of judicial decisions or opinions could also include references

of judicial admonishments or criticisms of an AUSA made by the judge.

According to OPR officials, they routinely conduct searches of legal

databases to determine if these types of criticism have occurred. Table 5

shows the disposition of closed investigations initiated by OPR as a result

of judicial findings or criticisms.

Fiscal year

Disposition 1997 1998 1999 2000a

Professional misconduct 8 4 6 3

Poor judgment 2 6 4 2

Performance problems, mistakes, or other criticisms 0 1 0 5

No finding of misconduct, poor judgment, or other criticism 13 17 17 13

Total 23 28 27 23

a

Fiscal year 2000 data are as of March 31, 2000.

Source: OPR.

OPR’s one key performance goal is to fully investigate and resolve

allegations of misconduct in less than 12 months. This goal is linked to

Justice’s departmentwide strategic goal of strengthening oversight and

integrity programs. According to OPR officials, in addition to the 12-month

goal for investigations, OPR also has an informal, internal goal of

completing all inquiries or converting them to investigations within 6

months. As part of Justice’s fiscal year 2001 Summary Performance Plan,

OPR included baseline trend data and specific target levels for the number

of investigations it expected to complete within 12 months for fiscal years

2000 and 2001. For example, OPR established target levels of 80 and 90

investigations to be completed within 1 year in fiscal years 2000 and 2001,

respectively.

We reviewed a computer summary from OPR’s case management system

for all of the investigations closed for fiscal year 1997 through the first half

Judicial Findings or

Criticisms

Table 5: Disposition of Closed

Investigations Initiated by OPR as a

Result of Judicial Findings or Criticisms

Performance Goals
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of fiscal year 2000 in which the allegations were substantiated for either

professional misconduct or for poor judgment. During fiscal years 1997

and 1998, OPR on average took less than 12 months to complete the

investigations. However, for fiscal year 1999 and the first half of fiscal year

2000, the average time for OPR to complete the investigations increased to

14.5 and 17.7 months, respectively. In May 1999, OPR formally adopted a

performance goal of fully investigating allegations of professional

misconduct by Justice attorneys and resolving them in less than 12

months. Table 6 shows the number of cases OPR completed in 12 months

or less and the average months to complete investigations, by fiscal year.

Fiscal year

Number of cases

closed

Number of cases

completed in less than

12 months

Percentage of cases

completed in less than

12 months

Average number of months

per case

1997 36 25 69% 9.3

1998 27 18 67% 9.9

1999 21 7 33% 14.5

2000a 15 5 33% 17.7b

Total 99 55 56% 11.8

a

Fiscal year 2000 data are as of March 31, 2000.

b

The average time, in months, for OPR to close investigations for fiscal year 2000 might be lower for

the entire fiscal year because, generally, investigations were closed faster towards the end of each

fiscal year.

Source: GAO analysis of computer summary from OPR's case management system.

OPR attributed the increase in the average length of time it took to close

fiscal year 2000 investigations to an increase in the caseloads of its

attorneys while staffing levels remained largely unchanged. OPR officials

stated that this was due to a hiring freeze initiated by Justice as of

November 23, 1999. OPR also noted that it was not fully staffed during this

period and that, as of March 31, 2000, it had only 18 attorneys. OPR

believed it needed a staff of 40, including 24 attorneys, to meet its

performance goals of completing investigations within 12 months and

inquiries within 6 months. In addition, according to OPR, it conducted a

number of protracted investigations into highly sensitive and complex

matters during this period.

When professional misconduct is found, OPR is to recommend a range of

disciplinary actions consistent with its established procedures. OPR

officially recognizes professional misconduct at two levels: intentional

misconduct or reckless disregard. According to OPR,

Table 6: Number of Investigations Completed in 12 Months or Less and the Average Number of Months to Complete

Investigations, by Fiscal Year

Disciplinary Actions

and Procedures If

Misconduct Is Found
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“An attorney engages in intentional misconduct when (1) the attorney acts with the purpose

of violating an obligation imposed by law, applicable rule of professional conduct, or

department policy or regulation or (2) acts knowing that the natural and probable

consequences of his or her action is to violate the obligation. An attorney acts in reckless

disregard of an obligation when the attorney (1) knows or should know of the obligation,

(2) knows or should know that his or her conduct involves a substantial likelihood that the

obligation will be violated, and (3) nonetheless engages in the conduct, which is objectively

unreasonable under the circumstances.”

Justice Order 1752.1A, “Standard Schedule of Disciplinary Offenses and

Penalties,” dated April 27, 1981, contained a schedule of recommended

ranges of disciplinary actions for various misconduct activities that were

to be applied departmentwide. Justice Order 1200.1, issued August 25,

1998, rescinded Order 1752.1A and authorized each Justice division or

bureau to develop unit-specific recommended ranges of disciplinary

actions for employee misconduct. According to OPR officials, the

superceded Justice disciplinary order contained little attorney-specific

guidance on imposing appropriate administrative penalties. In the absence

of a prescribed range of recommended discipline, OPR makes

recommendations on the basis of what it has recommended in past similar

investigations where misconduct was substantiated. OPR maintains an

internal document that lists the ranges of disciplinary actions

recommended according to the types of misconduct found, what factors

were considered in formulating OPR’s range of recommended discipline,

and what final actions were taken. According to OPR officials, this

document develops a body of precedent for recommending discipline that

is consistent with similar findings of misconduct.

The head of the office where the subject works (e.g., Justice’s Civil

Division) is responsible for determining the final discipline to be imposed.

Once discipline is imposed subsequent to an OPR finding of misconduct,

the office is supposed to report back to OPR on what final disciplinary

actions were taken. Any deviation by the head of the office from OPR’s

recommended range of actions, either less or more severe, must be

approved by the Deputy Attorney General.

We reviewed the internal document that OPR maintains to track the

recommended ranges of disciplinary actions for investigations where

misconduct allegations were substantiated. For those investigations closed

in fiscal year 1997 through the first half of fiscal year 2000, the final actions

taken deviated from what OPR recommended in about 26 percent of the

investigations. Of those that deviated, half were more severe than what

OPR recommended and half were less severe.
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OPR can also substantiate the allegations but, instead of finding

professional misconduct, find that the subject used poor judgment.

According to OPR,

“An attorney exercises poor judgment when, faced with alternative courses of actions, the

attorney chooses a course of action that is in marked contrast to the action that the

department may reasonably expect an attorney exercising good judgment to take.”

If OPR finds that a Justice attorney exercised poor judgment, OPR makes

no recommendations of disciplinary action since professional misconduct

was not found. Instead, the matter is referred to the head of the office

where the attorney works for “consideration in a management context.”

After reviewing OPR’s findings, the head of the office where the subject

works has the discretion to decide whether disciplinary measures are

appropriate, training or counseling is needed, or no further actions are

necessary. OPR also followed up with the offices to determine what, if

anything, had been done and incorporated this information into its internal

document for tracking disciplinary actions.

OPR can also determine that the allegations are unfounded or that a

subject simply made a mistake in performing his/her duties to investigate,

litigate, or prosecute. In these instances, OPR closes the case as

unsubstantiated; that is, it could find no basis to support the allegations

and the matter is closed without sanctions.

As noted earlier in this report, if the matter involved appears to be a

violation of a criminal law, OPR refers the matter to Justice’s Public

Integrity Section or the appropriate U.S. Attorney’s office.

After completing its investigation, if Justice OPR substantiates that a

Justice attorney committed intentional misconduct, its policy is to notify

the state bar(s) of which the attorney is a member of these findings. Figure

1 shows the number of matters referred to state bars for fiscal year 1997

through the first fiscal year half of 2000.

Referrals to State Bar

Associations
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a

According to an OPR official, there have been no referrals in fiscal year 2000 to date because OPR

does not notify state bars as to findings of intentional misconduct by Justice attorneys until the

applicable disciplinary process has “run its course.” Once final discipline has been imposed, then the

state bar is notified. Fiscal year 2000 data are as of June 2000.

Source: OPR.

According to OPR officials, they encourage state bars to defer to OPR in

investigating complaints against Justice attorneys because they believe

that OPR is in the best position to conduct the investigations. OPR officials

believe that they have greater and easier access to Justice employees and

department documentation. When state bars do defer to OPR, OPR

reciprocates by forwarding its relevant investigative reports to the bar

association with jurisdiction over the Justice attorney.

Justice OPR has some limited oversight responsibilities over similar offices

in two other Justice components, FBI and DEA. These agencies have

established their own OPRs, which are tasked with investigating

allegations of misconduct by employees in their respective agencies.

Justice OPR’s oversight functions include monitoring matters referred to

and being investigated by FBI and DEA OPRs, opining on prosecutive

issues related to investigations, and conducting joint investigations in

specialized situations.

Figure 1: Number of Matters OPR

Referred to State Bar Associations

OPR’s Working

Relationships With

Other Similar Justice

Components
B-284828

Page 15 GAO/GGD-00-187 Office of Professional Responsibility’s Operations

Justice OPR’s oversight of the FBI and DEA OPRs includes information

sharing. The FBI and DEA OPRs provide monthly lists of matters opened

and resolved to Justice OPR. In addition, when it opens an investigation of

employee misconduct, FBI OPR sends a written notice to Justice OPR.

These lists include the disposition of the allegations in each closed

investigation, the subject’s position, and other information. Justice OPR

officials said that they review these lists for any irregularities, such as

unusually light or severe disciplinary actions that were imposed. In

addition, Justice OPR publishes an annual report that includes case

statistics and sample summaries from closed investigations conducted by

FBI and DEA OPRs.

Justice OPR has limited oversight responsibility, and both the FBI and

DEA OPRs operate fairly autonomously. Justice OPR and these two offices

have separate jurisdictions and distinct case file systems. The FBI and

DEA OPRs also have more specific investigative procedures, formal

policies that direct the preparation of investigative reports, and formal

internal disciplinary and appeals processes. In addition, FBI and DEA

OPRs’ investigative procedures tend to be more structured. According to

FBI and DEA OPR officials, they commonly use signed, sworn statements

as an investigative tool; polygraph tests to help resolve factual issues; and

court reporters to fully document interviews when serious allegations are

present.

Officials from Justice, FBI, and DEA OPRs characterized their working

relationships as cooperative. For instance, Justice OPR officials said that

they are available for consultation on professional responsibility matters.

Also, Justice OPR conducts joint investigations with the FBI or DEA OPRs,

such as in the case of overlapping jurisdictions when Justice attorneys and

employees of those agencies are involved in alleged misconduct. The FBI

and DEA OPRs can also transfer matters normally under their jurisdiction

to Justice OPR if a conflict of interest is present, such as in cases in which

the allegations involve officials from their OPR.

Justice OPR officials stated that when they receive a complaint concerning

an employee under the FBI or DEA OPR’s jurisdiction, absent any special

circumstances, they refer the matter to the respective OPR. The referral

includes a cover memorandum signed by the Deputy Counsel and the

original complaint. Once a matter is referred to FBI or DEA OPR, Justice

OPR closes the matter in its computer database and does not generally

track the specific referrals since the subjects are outside its jurisdiction.

However, with significant matters, such as allegations that might rise to

the level of criminality, Justice OPR can request that the FBI and DEA
B-284828

Page 16 GAO/GGD-00-187 Office of Professional Responsibility’s Operations

OPRs keep it advised on the status of the complaint and the resolution of

any resulting investigations.

We have issued reports on OPR operations in 1992, 1994, and 1995.6

 Of

these three reports, only our 1992 report contained recommendations to

correct OPR deficiencies. In the 1992 report, we recommended that the

Attorney General direct the Counsel, OPR, to

• establish basic standards for conducting OPR investigations;

• establish standards for case documentation, including requirements for the

contents of each case file, such as a listing of potential interview subjects

in the case, a chronology of actions taken, and a rationale for actions taken

or not taken and for decisions reached;

• as appropriate, review the case files to identify any possible systemic

changes that might be needed to Justice’s procedures and operations; and

• follow up more consistently on the results of misconduct investigations

done by other components and what disciplinary actions, if any, were

taken as a result of all misconduct investigations—both those done by

OPR attorneys and those done by other components within Justice. This

information should be part of the files.

OPR has taken action to respond to each recommendation. On May 12,

1992, OPR issued internal guidelines for investigating allegations of

misconduct and for documenting in the case files the investigative work

done, including the rationale for why some actions may not have been

completed and, for substantiated cases, what disciplinary actions were

taken. The internal guidelines also indicated that OPR would require that a

review of case files for systemic problems be done on at least an annual

basis. As noted on page 6 of this report, OPR appears to be adhering to

these guidelines.

With respect to identifying possible systemic problems, OPR provided

examples of policy changes it recommended on the basis of its reviews of

case files. For example, OPR found that some recent court cases might

indicate an increased judicial willingness, under certain circumstances, to

declare nonfederal participants “functionally part” of a federal

prosecutorial team, who would be subject to those disclosure

responsibilities applicable to the U.S. Attorneys. Accordingly, OPR

suggested that the Attorney General consider advising all districts to

provide guidance to nonfederal case agents on the procedures for

preserving all notes, witness statements, and other records relating to a

 

6

GAO/GGD-92-31; GAO/OGC-94-24; and GAO/OSI-95-8.

Changes OPR Has

Made as a Result of

Our Prior Reports
B-284828

Page 17 GAO/GGD-00-187 Office of Professional Responsibility’s Operations

case. In response to OPR’s suggestion, the Executive Office for U.S.

Attorneys advised that it had made available to all U.S. Attorney’s offices

nationwide a letter reminding agents of their responsibilities to preserve

notes made during their investigations. See appendix II for further details

about this and other examples of OPR’s reviews of systemic problems.

Finally, OPR has taken action to consistently follow up on the final

disciplinary actions taken. As noted on page 12 of this report, the heads of

the offices where the employees work are responsible for deciding what

the final disciplinary actions will be and for reporting to OPR on what

actions were taken. An OPR official said that the offices generally do

report back to them on what actions were taken. However, according to

OPR officials, OPR also periodically follows up with individual Justice

components to obtain this information. OPR tracks the final disciplinary

actions via an internal document that lists (1) the OPR case number and

subject name(s), (2) OPR’s finding, (3) OPR’s recommended range of

disciplinary actions, and (4) the final action(s) taken.

Our other two reports relating to OPR’s operations and responsibilities did

not contain recommendations. The 1994 report7

 was an opinion by our

Office of General Counsel concerning the jurisdictional disputes over

misconduct matters between OPR and Justice’s OIG. In response to this

opinion, the Attorney General issued an order clarifying the jurisdiction for

both OPR and OIG. The 1995 report8

 evaluated the extent to which OPR

had addressed our 1992 recommendations.

During our work, we became aware of two Justice OIG reports, issued in

April 1998 and July 1998, relating to travel abuses by certain OPR

attorneys. In January 1998, while the OIG was conducting its investigation

of travel abuses, OPR’s then Acting Counsel reexamined its travel

regulations and, on January 21, 1998, distributed a memorandum entitled

“Policy on Approval of Official Travel.” This internal OPR memo laid out

travel policies, such as use of the per-diem allowance method and that

actual subsistence would be approved on a case-by-case basis. In addition,

according to OPR officials, all OPR managers attended a meeting in

February 1998 with Justice Management Division’s Consolidated

Administrative Office staff, on further instructions for compliance with

Justice’s travel regulations.

 7

GAO/OGC-94-24.

8

Department of Justice: Office of Professional Responsibility’s Case-Handling Procedures (GAO/OSI-95-

8, Mar. 31, 1995).

Justice OIG Reports
B-284828

Page 18 GAO/GGD-00-187 Office of Professional Responsibility’s Operations

The Hyde Attorneys Fees Amendment, enacted November 26, 1997, as part

of Justice’s fiscal year 1998 appropriations act,9

 allows a defendant

acquitted in a criminal case to recover reasonable attorneys’ fees and other

litigating expenses where the federal government’s position is found by the

court to be vexatious, frivolous, or in bad faith.

Hyde Amendment cases provide another mechanism by which OPR can

become aware of matters relating to alleged misconduct by Justice

attorneys. The Appellate Section of Justice’s Criminal Division produces

monthly reports summarizing all claims for attorneys’ fees submitted

pursuant to the Hyde Amendment. According to OPR officials, they review

these reports to determine if the facts of the case constitute grounds for an

OPR investigation. OPR does not ordinarily investigate possible attorney

wrongdoing until the final outcome of the case is known. OPR officials

said this is because a claim for attorneys’ fees under the Hyde Amendment

may result in additional litigation, which could produce more facts

relevant to an OPR investigation.

According to OPR officials, at the time of our review, OPR was looking

into nine matters, in various stages of investigation or inquiry, that

stemmed from Hyde Amendment claims and had closed one matter on

June 11, 2000. Also, Justice recently promulgated an internal regulation

(DOJ Order 2030, signed by the Attorney General on May 9, 2000) that

designated responsibilities for Justice components for paying awards

relevant to Hyde Amendment claims.

The Citizens Protection Act,10 otherwise known as the McDade-Murtha Act,

requires Justice litigators, including prosecutors in U.S. Attorney offices, to

be subject to the ethical standards of the state where such attorney

engages in that attorney’s duties. Justice’s implementing regulations

further defined the phrase “where such attorney engages in that attorney’s

duties” to mean either (1) if a case is pending, the rules of ethical conduct

adopted by the court before which the case is pending or (2) if there is no

case pending, the rules of ethical conduct that would be applied by the

attorney’s state of licensure.

In performing its responsibilities regarding the Citizens Protection Act,

according to the documents we reviewed OPR initially determined the

state bar(s) of which the subject was a member. In its notification letter to

 

9

P.L. 105-119, 111 Stat. 2519, Section 617 (1997).

10P.L. 105-277, section 801.

OPR’s Role in

Monitoring and

Implementing the Hyde

Amendment and the

Citizens Protection Act
B-284828

Page 19 GAO/GGD-00-187 Office of Professional Responsibility’s Operations

a subject of an OPR investigation, OPR requested that the subject identify

each state in which he or she was licensed to practice law. OPR evaluated

the attorney’s conduct by applying the most stringent rules of either the

licensing state(s) or the state where the case took place. According to OPR

officials, this technique is necessary because Justice attorneys may appear

for the government in the courts of any jurisdiction, regardless of their

state of licensure, and because many Justice attorneys are licensed to

practice law by more than one state bar.

An OPR official described a hypothetical situation in which a Justice

attorney can handle a case in Virginia but also be subject to Ohio bar rules.

Justice attorneys have to be members of at least one state bar, but not

necessarily the one in which the case is pending. Therefore, a Justice

attorney arguing a case in Virginia could be held liable for misconduct as

defined by Ohio state bar rules, if the Justice attorney belongs to the Ohio

bar and the Ohio rules are more stringent. Conversely, in this hypothetical

situation, the attorney’s conduct would be evaluated against the Virginia

rules if those bar rules were more stringent.

According to OPR officials, all Justice attorneys should be knowledgeable

of the rules of the state bar(s) to which they belong, and Justice maintains

a clearinghouse of all states’ bar rules in its Professional Responsibility

Advisory Office.

We requested comments on a draft of this report from the Attorney

General or her designee. OPR’s Deputy Counsel responded in a letter dated

July 28, 2000, that Justice had no comments on the substance of the report.

However, she provided some technical comments, which we incorporated

where appropriate.

As arranged with the Committee, we plan no further distribution of this

report until 30 days after its date. We will then send copies to Senator

Orrin G. Hatch, Chairman, and Senator Patrick J. Leahy, Ranking Minority

Member, Senate Committee on the Judiciary; Representative John

Conyers, Jr., Ranking Minority Member, House Committee on the

Judiciary; the Honorable Janet Reno, Attorney General; the Honorable

Donnie R. Marshall, Administrator, DEA; the Honorable Louis Freeh,

Director, FBI; and the Honorable Robert L. Ashbaugh, Acting Inspector

General, Department of Justice. We will also make copies available to

others upon request.

Agency Comments
B-284828

Page 20 GAO/GGD-00-187 Office of Professional Responsibility’s Operations

Please contact Weldon McPhail or me on 512-8777 if you or your staff have

any questions. Other major contributors to this report are acknowledged in

appendix III.

Richard M. Stana

Associate Director, Administration

 of Justice Issues
Page 21 GAO/GGD-00-187 Office of Professional Responsibility’s Operations
Page 22 GAO/GGD-00-187 Office of Professional Responsibility’s Operations

Contents

1 Letter

Appendix I 24

Flow Chart of OPR’s

Investigative

Procedures

26

Documentation of Responsibilities of Nonfederal Agents

Involved in Criminal Investigations

26

Disclosure and Discovery Obligations and Conflicts of

Interest

27

Witness Cooperation in Multiple Jurisdictions 27

Attorney Bar Memberships 27

Appendix II

Examples of Policy

Changes

Recommended by OPR

as a Result of Case File

Reviews

Appendix III 28

GAO Contacts and

Staff

Acknowledgments

Table 1: OPR’s Authorized and Actual Staffing and

Funding Levels

7

Table 2: Number of Complaints Received by OPR During

Fiscal Years 1997 to 2000

8

Table 3: Sources of Complaints for Investigations Opened

by OPR

9

Table 4: Types of Allegations for Investigations Closed by

OPR

9

Table 5: Disposition of Closed Investigations Initiated by

OPR as a Result of Judicial Findings or Criticisms

10

Table 6: Number of Investigations Completed in 12

Months or Less and the Average Number of Months to

Complete Investigations, by Fiscal Year

11

Tables

Figure 1: Number of Matters OPR Referred to State Bar

Associations

14 Figures
Page 23 GAO/GGD-00-187 Office of Professional Responsibility’s Operations

Contents

Abbreviations

ABA American Bar Association

AUSA Assistant United States Attorney

DEA Drug Enforcement Administration

FBI Federal Bureau of Investigation

OIG Office of the Inspector General

OPR Office of Professional Responsibility
Appendix I

Flow Chart of OPR’s Investigative Procedures

Page 24 GAO/GGD-00-187 Office of Professional Responsibility’s Operations
Appendix I

Flow Chart of OPR’s Investigative Procedures

Page 25 GAO/GGD-00-187 Office of Professional Responsibility’s Operations

Source: OPR
Appendix II

Examples of Policy Changes Recommended

by OPR as a Result of Case File Reviews

Page 26 GAO/GGD-00-187 Office of Professional Responsibility’s Operations

One of the recommendations we made in our 1992 report1 was that OPR

should, as appropriate, review the case files to identify any possible

systemic changes that might be needed to Justice’s procedures and

operations. In response to our recommendations, OPR issued internal

guidelines, that among other things, required that a review of case files for

systemic problems be done on at least an annual basis. We asked OPR for

examples of instances where it had identified systemic problems and made

recommendations for departmentwide or unit-specific changes. OPR

provided the following examples.

In July 1995, OPR advised the Attorney General of a potential problem

illustrated by a 1994 opinion of the U.S. District Court in Massachusetts,

United States v. Mannarino.2

In Mannarino, the Court found that a state police officer was “functionally

part of the United States Attorney’s prosecutorial team” and was subject to

those disclosure responsibilities applicable to the United States Attorneys.3

The Court was highly critical of the government’s “decision to leave the

preservation of materials whose disclosure was plainly required to a

person unprepared by disposition or training to perform that function.”4

OPR noted that this and other recent cases may signal an increasing

judicial willingness in criminal cases to declare nonfederal agencies

“functionally part” of federal prosecutions. The U.S. Attorney for the

District of Massachusetts prepared a standard written notice to be given to

all nonfederal case agents participating in joint federal/nonfederal

investigations, directing them to preserve all notes, witness statements,

and other records relating to the case. OPR suggested that the Attorney

General consider whether such advice should be provided in all districts.

In August 1996, the Executive Office for U.S. Attorneys (EOUSA) advised

that it had made available to all U.S. Attorneys’ offices nationwide a letter

reminding agents of their responsibilities to preserve notes made during

investigations.

 

1

 GAO/GGD-92-31.

2

 850 F. Supp. 57 (D. Mass. 1994).

3

 Id. at 64, 68.

4

 Id at 71.

Documentation of

Responsibilities of

Nonfederal Agents

Involved in Criminal

Investigations
Appendix II

Examples of Policy Changes Recommended by OPR as a Result of Case File Reviews

Page 27 GAO/GGD-00-187 Office of Professional Responsibility’s Operations

In May 1996, OPR advised the Attorney General that “[t]he frequency with

which improper disclosures, conflicts of interest, and failure to satisfy

discovery obligations arise in misconduct allegations leads us to suggest

that you instruct appropriate components to stress these categories in ongoing Departmental training.”

In August 1996, EOUSA advised OPR that it had designed a training course

on the handling of complex litigation that included instruction on these

issues. The training course was offered first in a district that OPR reported

as having an especially high rate of allegations of professional misconduct.

In September 1996, OPR noted that it was investigating three complaints of

alleged misconduct arising out of friction between U.S. Attorneys’ offices

over the joint use of witnesses. OPR advised the Attorney General that

such problems “may sometimes threaten and even undermine successful

prosecutions of significant cases,” and that such problems could be

expected to increase “as multi-jurisdictional prosecutions arising out of

related schemes become more common.” OPR stated that “[t]he

Department may want to implement procedures to address the resulting

frictions between jurisdictions.”

In August 1997, EOUSA advised all U.S. Attorneys to instruct Assistant U.S.

Attorneys to bring matters of this nature to the U.S. Attorneys’ attention

for resolution, with the help, if necessary, of Justice’s Criminal Division.

In November 1996, OPR advised the Attorney General that it had become

aware that a Justice attorney who had been found by OPR to have engaged

in intentional professional misconduct was not an active member of any

bar. OPR had discovered this information in the process of implementing

Justice’s policy on notifying the appropriate state bar of the finding of

intentional professional misconduct. OPR suggested that “the Department

consider asking the Office of Attorney Personnel Management to maintain

a current list (updated annually) of bar memberships for all Department

attorneys. This will help OPR in its inquiries: our attorneys report, as

might be expected, that asking subjects of investigations for their bar

memberships often seems to chill the interviews. Such a list will also

assist the Department by helping to insure that all attorneys are active

members of a bar in good standing.”

In May 1997, Justice adopted a new policy requiring all Justice attorneys to

certify annually that they are duly licensed and authorized to practice law

in at least one jurisdiction, and to identify the jurisdiction.

Disclosure and

Discovery Obligations

and Conflicts of

Interest

Witness Cooperation in

Multiple Jurisdictions

Attorney Bar

Memberships
Appendix III

GAO Contacts and Staff Acknowledgments

Page 28 GAO/GGD-00-187 Office of Professional Responsibility’s Operations

Richard M. Stana, (202) 512-8777

Weldon McPhail, (202) 512-8777

In addition to those named above, Seto Bagdoyan, Geoffrey Hamilton,

Andrew Hoffman, Tim Outlaw, and Barry Seltser made key contributions

to this report.

GAO Contacts

Acknowledgments
Page 29 GAO/GGD-00-187 Office of Professional Responsibility’s Operations
Page 30 GAO/GGD-00-187 Office of Professional Responsibility’s Operations
Page 31 GAO/GGD-00-187 Office of Professional Responsibility’s Operations
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