Professional Misconduct: DOJ Could Strengthen Procedures for Disciplining Its Attorneys
Published: 2014-12-11T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Instances of professional misconduct—such as a violation of an attorney’s responsibilities to be honest—among DOJ attorneys have called into question DOJ’s efforts to oversee attorney behavior, including its processes for investigating and disciplining misconduct complaints.
Congress mandated GAO to review DOJ's performance in disciplining attorneys. This report addresses (1) DOJ's processes to manage misconduct complaints; (2) how supervisors determine work responsibilities for attorneys accused of, or found to have engaged in, misconduct; and (3) DOJ's policies for paying for representation for attorneys investigated for misconduct. GAO reviewed DOJ regulatory obligations and policies, and legal representation costs from fiscal years 2008 through 2013. GAO also analyzed survey responses on assigning work responsibilities from 48 selected litigating sections. Responses are not generalizable, but provided helpful insights. GAO also interviewed DOJ officials who manage misconduct complaints.
section_title: What GAO Found
paragraphs: The Department of Justice (DOJ) has made changes to improve its processes for managing complaints of attorney professional misconduct since 2011 but has not implemented plans to improve processes for demonstrating that discipline is implemented, or achieving timely and consistent discipline decisions. For example, GAO found that changes to the Office of Professional Responsibility's (OPR) processes for assessing the merits of misconduct complaints reduced assessment time that took up to 90 days in 2008 to about 7 days in 2014. However, GAO found that DOJ does not require its components to demonstrate that attorneys have served the discipline imposed on them for misconduct. Ensuring that discipline is implemented helps hold attorneys accountable for violating professional standards and provides the public reasonable assurance that misconduct is being addressed. DOJ also has not implemented a change called for in a January 2011 memorandum from the Attorney General that would expand the purview of the Professional Misconduct Review Unit (PMRU)--the unit that proposes and decides discipline for attorneys with findings of misconduct by OPR. With this change, PMRU would go from deciding discipline for attorneys with professional misconduct findings in U.S. Attorneys' Offices (USAO) and the Criminal Division to all components. According to the Attorney General, this change could help reduce delays in implementing discipline and ensure consistent decisions about discipline. DOJ did not provide GAO with reasons for not making this change.
DOJ policy provides that supervisors of attorneys accused of, or found to have engaged in, professional misconduct can use discretion to determine what work to assign to these attorneys. DOJ also provides agency-wide guidance to supervisors, such as administrative directives and the U.S. Attorneys' Manual, that identify steps supervisors may take when dealing with attorneys accused of misconduct. Representatives for 12 of the 20 USAOs and 20 of the 28 litigating sections we surveyed reported that supervisors assign work on a case-by-case basis but consider factors, such as the nature of the alleged misconduct, in doing so. A smaller number of respondents reported that supervisors may assign work to such attorneys no differently than to other attorneys until the supervisors determine allegations have merit or professional misconduct is confirmed.
Under departmental policy, DOJ is not to authorize legal representation for attorneys in OPR proceedings, including representation to assist such attorneys in preparing submissions to support their defense. However, DOJ attorneys, like all federal employees, may be provided legal representation by DOJ for carrying out their duties, under certain circumstances. For example, DOJ may provide representation for an attorney whose conduct is the subject of a state bar proceeding while the attorney is also the subject of an OPR investigation related to the same conduct. The representation would cover defense for the state bar but not the OPR proceeding. As a result, from fiscal years 2008 through 2013, DOJ expended $3.66 million for private counsel representation for 38 DOJ attorneys involved in 18 legal proceedings where there were also related OPR investigations. DOJ found 12 attorneys within these investigations to have engaged in professional misconduct.
section_title: What GAO Recommends
paragraphs: GAO recommends that DOJ (1) require components to demonstrate that they have implemented discipline for misconduct and (2) establish near-term milestones for expanding PMRU's jurisdiction to decide discipline for all attorneys with findings of misconduct.DOJ agreed with GAO's recommendations.

section_title: Letter
paragraphs: In 2009, the Attorney General moved to overturn the conviction of former  senator Ted Stevens, who had been found guilty of seven felony counts  of lying on Senate financial disclosure forms, upon finding that federal  prosecutors had failed to disclose evidence that would have helped  Senator Stevens to defend himself against false statement charges. And  in September 2013, a Louisiana federal judge overturned the convictions  and ordered a new trial for five New Orleans police officers alleged to  have shot unarmed civilians during the aftermath of Hurricane Katrina,  finding that federal prosecutors violated Department of Justice (DOJ)  regulations and various Rules of Professional Responsibility.other high-profile instances of DOJ attorney professional misconduct  raise questions about the behavior of attorneys within DOJ. Professional  misconduct is a violation of an attorney’s responsibilities to maintain  honesty, trustworthiness, and fitness as a lawyer, and consists of actions   These and  that involve dishonesty, fraud, deceit, or misrepresentation resulting in the  obstruction of the administration of justice.
The manner in which DOJ attorneys exercise their responsibilities has far- reaching implications, in terms of the consequences for individual citizens  and government law enforcement efforts. According to the U.S. Attorneys’  Manual (USAM), the success of the federal prosecutorial system  ultimately relies on the character, integrity, and competence of those  attorneys who are selected to represent the public interest in the federal   DOJ attorneys are guided by a general  criminal justice process. statement of principles, outlined in the USAM, which summarizes  appropriate considerations attorneys are to weigh and desirable practices  they are to follow, in discharging their responsibilities. DOJ attorneys are  also subject to rules of professional conduct in the states where the  attorney practices and where the attorney is licensed to practice. When  attorneys are suspected of violating these rules of professional conduct,  or other professional obligations, the Office of Professional Responsibility  (OPR) within DOJ is in charge of receiving, reviewing, and investigating  complaints of attorney misconduct. The Professional Misconduct Review  Unit (PMRU), which DOJ established in 2011, is responsible for  proposing and deciding discipline for attorneys in U.S. Attorneys’ Offices  (USAO) and DOJ’s Criminal Division found to have engaged in  professional misconduct, in accordance with federal disciplinary  regulations.
The United States Attorneys’ Manual is designed as a reference for United States  Attorneys, Assistant United States Attorneys, and department attorneys responsible for  the prosecution of violations of federal law. The manual contains general policies and  some procedures relevant to the work of the United States Attorneys’ Offices and to their  relations with the legal divisions, investigative agencies, and other components within the  Department of Justice. disciplining professional misconduct of its attorneys. The explanatory  statement accompanying DOJ’s fiscal year 2013 appropriations act,  which was passed into law in March 2013, mandated GAO to review the  department’s performance in disciplining prosecutors. This report  addresses the following questions:  1.  To what extent does DOJ have processes to manage complaints of  professional misconduct to discipline attorneys for findings of  misconduct, and that advise on performance awards for these  attorneys?  2.  How do supervisors determine work responsibilities for attorneys  accused of, or who have been found to have engaged in, professional  misconduct?  3.  What are DOJ’s policies for paying or reimbursing the attorneys fees  and costs of departmental employees in actions relating to allegations  of contempt of court or prosecutorial misconduct, and what is the  extent to which DOJ is paying for such costs?
To address our first objective, we reviewed DOJ guidance related to  establishing and overseeing attorney standards of conduct, including  ethical conduct, such as outlined in the USAM and published regulations.  We assessed agency-wide policies establishing DOJ’s processes for  identifying, investigating, and disciplining professional misconduct,  including OPR’s Analytical Framework—which provides guidance on the  types of behavior identified as professional misconduct—and how OPR  conducts investigations into misconduct. We compared OPR’s process  for supervisory review of professional misconduct complaints with internal  control standards to ensure that OPR management provided oversight of  the receipt, review, and investigation of misconduct complaints. We  reviewed OPR complaint data from fiscal years 2008 through 2013 in  order to describe what, if any, changes occurred in the number of  complaints and the length of time to complete inquiries and investigations  since DOJ’s process for managing complaints of professional misconduct  changed in 2011. We reviewed internal DOJ personnel and disciplinary  documentation for all 40 cases for which OPR investigated attorneys for  professional misconduct and for which PMRU was responsible for  considering discipline from fiscal years 2011 through 2013, and compared  DOJ’s practices for documenting disciplinary actions with internal  controls. We interviewed knowledgeable officials in OPR and PMRU,  and selected DOJ components, such as the Criminal Division and the  Executive Office for U.S. Attorneys (EOUSA), to obtain their views on  how DOJ manages professional misconduct.reviewed the literature produced by a variety of third-party stakeholders,  such as advocacy groups and academics, to obtain information on their  perspectives on DOJ’s efforts to address professional misconduct.  Interviews with these stakeholders cannot be generalized. However, they  provide valuable insights about DOJ’s abilities to effectively identify and  address professional misconduct.
To address our second objective, we sent a questionnaire to 20 USAOs  and 28 litigating sections within selected DOJ components to collect  information on the various types of policies and procedures put in place to  manage the work activities of attorneys accused of, or found to have  engaged in, professional misconduct. We selected USAOs because  EOUSA’s General Counsel’s Office stated that attorneys within these  offices would be in the best position to discuss management of the work  activities of attorneys alleged or found to have committed professional  misconduct. We selected litigating sections to provide additional  examples of how the department manages the work activities of attorneys  alleged or found to have committed professional misconduct. To ensure  that we obtained information across USAOs with varying workloads, we  randomly selected 20 USAOs across all sizes using office case workload  hours provided in the U.S. Attorneys’ 2012 Statistical Report. We selected litigating sections within DOJ components that have experience  managing attorneys subject to a complaint of professional misconduct   Using these criteria, we sent  from fiscal years 2008 through 2013.questionnaires to DOJ’s Criminal Division, Civil Rights Division, Tax  Division, Environment and Natural Resources Division, Antitrust Division,  and Civil Division. Because we used a nongeneralizable sample, our  findings cannot be used to make inferences about other USAOs or DOJ  components. We received responses from all 20 USAOs and 28 litigating  sections.
To address our final objective, we analyzed DOJ’s policies for providing  legal representation to federal employees. We assessed agency-wide  policy guidelines, identifying the circumstances under which federal  employees are eligible to receive representation by private counsel at  DOJ’s expense. We collected DOJ data from fiscal years 2008 through  2013 on (1) the number of cases in which DOJ approved legal  representation for federal employees, and (2) the total amount DOJ  expended for private counsel representation for federal employees. We  assessed the reliability of both sets of these data by interviewing  knowledgeable agency officials. We concluded that these data were  sufficiently reliable for the purposes of this report.
We conducted this performance audit from September 2013 to December  2014 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.
subsections: section_title: Background
paragraphs: The Attorney General established OPR in December 1975 as a response  to the ethical abuses and misconduct that DOJ officials committed during  the Watergate scandal to ensure that department employees perform  their duties in accordance with professional standards. OPR’s mission is  to hold accountable department attorneys, and law enforcement agents  who work with those attorneys, who abuse their power or otherwise  violate the ethical standards required of them by law. OPR has jurisdiction  to investigate allegations of professional misconduct when the allegations  relate to the exercise of the attorney’s authority to investigate, litigate, or  provide legal advice. OPR is headed by a Counsel who is a career  Senior Executive Service member who reports to the Attorney General  and the Deputy Attorney General.
Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. § 3500 (the Jencks Act),  Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972)  establish the discovery obligations of federal prosecutors. According to DOJ policy, it is  the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and  impeachment information from all members of the prosecution team to ensure that the  defendant has a fair trial. The prosecution team includes, among other others, federal,  state, and local law enforcement officers participating in the investigation and prosecution  of the criminal case against the defendant. evaluate whether the misconduct at issue is serious, and if so, report it to  the appropriate office in DOJ.
subsections: section_title: DOJ’s Process for Managing Complaints of Professional Misconduct
paragraphs: OPR receives complaints of professional misconduct from a variety of  sources, including judicial opinions and referrals, private individuals and  attorneys, DOJ employees, and other federal agencies. OPR is to review  each complaint, and assess whether an attorney engaged in professional  misconduct. If an attorney is found to have engaged in misconduct, OPR  is to refer its findings to PMRU or the attorney’s component head to  consider disciplinary action. Attorneys who are found to have engaged in  misconduct can appeal disciplinary decisions, or submit grievances, to  their component head, the Deputy Attorney General, or the Merit Systems  Protection Board (MSPB) depending on the component for which they  work and the type and length of the discipline imposed. Figure 1 shows  DOJ’s process for managing and disciplining professional misconduct.
Inquiry. OPR initiates an inquiry when it needs more information to  resolve the complaint. In such cases, OPR is to request a written  response to the allegations and supporting documentation—such as  documents or e-mail records regarding the underlying allegation of  misconduct and the attorney’s professional background and  experience, among other things—from the attorney who is the subject  of a complaint and the component head. OPR may also collect  documents and e-mail records, and review case files and court  pleadings.
Investigations. In cases that cannot be resolved based on a review  of the written record, OPR is to initiate an investigation of the alleged  misconduct. This includes requesting and reviewing additional  relevant documents and conducting interviews of the subject  attorney(s) and witnesses. OPR makes findings of professional  misconduct only after conducting a full investigation.
Discipline. When OPR determines an attorney has engaged in  misconduct, OPR provides a written report of its findings and  conclusions to PMRU or the attorney’s respective component  management for disciplinary action. PMRU is to review OPR’s  findings to determine if OPR’s evidence is sufficient to support a  finding of misconduct. If PMRU decides to reduce OPR’s findings of  misconduct to poor judgment, it is to refer its decision to the attorney’s  component management for discipline. Component management may  ask the Office of the Deputy Attorney General for the authority to  reject OPR’s findings if management disagrees with the findings.  However, component management must uphold OPR’s findings if the  Office of the Deputy Attorney General denies its request. For  instances in which OPR found the attorney to have engaged in poor  judgment, OPR is to refer its findings to the attorney’s component  management to determine whether discipline is appropriate.
Impose discipline. If it is determined by PMRU, component  management, or the Office of Attorney Recruitment and Management  (OARM) that an attorney engaged in misconduct, component  management is responsible for implementing the discipline decided.
For attorneys within USAOs and the Criminal Division, PMRU is the   Because PMRU speaks  proposing and deciding disciplinary office.for the department on such matters, the two components are not at  liberty to disagree with PMRU’s decision. For attorneys in other DOJ  components, component managers, who handle these matters as  only one of their many assigned responsibilities, are the proposing  and deciding officials for admonishments, reprimands, and  suspensions of 14 days or less. For suspensions of 15 days or more,  demotions, and removals, component management is the proposing  official and OARM is the deciding official. Component management  may disagree with OPR’s findings, but only with the approval of the  Office of the Deputy Attorney General.
Grievance or appeal. USAO and Criminal Division attorneys who are  found to have engaged in misconduct can grieve PMRU’s decision to  the Deputy Attorney General for findings in which PMRU imposed a  suspension for 14 days or less. For findings in which PMRU imposed  a suspension for 15 days or more, these attorneys may appeal to  MSPB. Attorneys within other DOJ components who are found by  component management or OARM to have engaged in misconduct  can submit grievances for suspensions imposed for 14 days or less to  a higher level official in their component, and for 15 days or more to  MSBP.
OPR uses its Analytical Framework to determine whether an attorney  engaged in misconduct, and DOJ employees may refer to OPR’s  Analytical Framework when determining whether an action constitutes  misconduct. Under the Analytical Framework, OPR finds department  attorneys engage in professional misconduct when they intentionally  violate or act in reckless disregard of an obligation or standard imposed  by law, applicable rule of professional conduct, or department regulation  or policy. Under the framework, attorneys can also be found to have  exercised poor judgment, engaged in other inappropriate conduct, made  a mistake, or acted appropriately under all the circumstances. The  Privacy Act places limitations on the disclosure of specific findings of  professional misconduct and other information that OPR maintains about  these cases, such as the name of the attorney found to have engaged in  misconduct. OPR, however, discloses summary-level information on its  findings in its Annual Report, including descriptions of investigations it  closed and its resolution of the matter, without identifying the subject of its  investigation.
section_title: Independence and Transparency
paragraphs: Historically, Members of Congress and other third-party stakeholders,  such as the American Bar Association, have stated that they believe that  DOJ’s processes for investigating and disciplining professional  misconduct are not transparent and prevent attorneys from being held  publically accountable for their actions. These long-standing concerns  have prompted some Members of Congress to publically call for allowing  DOJ’s Office of the Inspector General (OIG) to investigate allegations of  professional misconduct so as to better ensure that the public is provided  sufficient information on attorney behavior. Currently, in accordance with  statute, DOJ’s OIG does not have jurisdiction to investigate complaints of  professional misconduct against DOJ attorneys, including complaints  against the Attorney General, Deputy Attorney General, and other senior  department attorneys; the OIG may otherwise conduct audits and  investigations it considers appropriate, including regarding OPR.
However, the OIG has partnered with OPR in a few instances to  investigate the Attorney General, the Deputy Attorney General, and other  high-ranking DOJ officials in professional misconduct investigations  because of overlapping issues involving both OIG’s and OPR’s  jurisdictions.
Legislation that would allow the OIG to investigate professional  misconduct complaints has been introduced on numerous occasions, with  the most recent legislation introduced in March 2014. General testified in April 2014 before Congress that he does not support  any action that would put misconduct investigations under the OIG’s  jurisdiction because he believes that OPR has unique expertise for  looking at complaints of misconduct and, where appropriate,  recommending punishment. On the other hand, the current DOJ  Inspector General has criticized the different treatment related to  professional misconduct that department attorneys receive from OPR’s  oversight, noting that investigating attorneys differently from other  department employees has a detrimental effect on public confidence in  DOJ’s ability to review its own attorneys’ misconduct. The DOJ Inspector  General has also testified in support of OIG jurisdiction over professional  misconduct investigations, stating that OIG’s statutory and operational  independence from DOJ ensures that OIG investigations occur through a  transparent and publicly accountable process. In 1994, GAO issued a  legal opinion stating that GAO does not believe an OIG is institutionally  less capable of reviewing matters that pertain to discretionary legal  judgments, provided the OIG has the necessary experience and expertise  to do so.
E.g., S. 2127, 113th Cong. (2014); H.R. 3847, 111th Cong. (2009); S. 2324, 110th Cong.  (2007); H.R. 9238, 110th Cong. (2007).
Other stakeholders have raised concerns about the transparency of  OPR’s misconduct investigations. For example, in August 2010, the  American Bar Association called on DOJ to release information on  completed professional misconduct investigations to give the public  confidence that lawyers engaged in serious misconduct are held  accountable and to educate the public about the type of complaints that  often are made that are unwarranted. Additionally, in March 2013, the  National Association of Assistant United States Attorneys called on OPR  to make its findings of misconduct inquiries and investigations more  accessible and available to Assistant U.S. Attorneys. The Association  believes that doing so will allow Assistant U.S. Attorneys to better ensure  due process in OPR investigations. However, OPR’s position is that it is  prohibited under the Privacy Act from releasing specific information  related to its investigations—such as the name of the accused attorney— unless otherwise identified by the act’s routine-use clause. However,  according to OPR, this clause allows OPR to share information on its  investigations with Congress and for routine-use exceptions, such as for  bar disciplinary action or in response to a written request by a judicial  officer where it is relevant to the judicial office or the court. To help  provide greater transparency of its investigations, OPR provides  summaries of its findings in its Annual Reports.
section_title: DOJ Has Processes to Manage Complaints of Professional Misconduct, but Faces Challenges in Disciplining Attorneys
paragraphs: OPR has implemented processes to better manage professional  misconduct complaints since 2011, and DOJ is taking steps to help  address how it identifies and prevents such misconduct among  department attorneys. However, DOJ has not implemented its plan to  expand the jurisdiction of PMRU to ensure that discipline for professional  misconduct is applied consistently and in a timely manner for all  department attorneys. Furthermore, not all DOJ components have  mechanisms in place to ensure that attorneys found to have engaged in  misconduct serve the discipline imposed upon them.
subsections: section_title: OPR Has Implemented Processes to Better Manage Professional Misconduct Complaints
subsections: section_title: OPR Actions to Increase the Timeliness of Its Complaint Review Process
paragraphs: OPR has taken steps to increase its timeliness in managing the average  1,000 professional misconduct complaints it receives each year by  redesigning its processes for receiving and investigating these  complaints. According to OPR’s Deputy Counsel, prior to 2011, OPR  could not resolve the number of complaints received in a timely manner  because the process it used to assess complaints was time-consuming  and inefficient. For example, prior to 2011, OPR used to open many  misconduct complaints as investigations rather than inquiries, and most  investigations are inherently more time-consuming and costly for the  agency because they involve in-depth file reviews and interviews. At that  time, OPR also staffed its office in part with attorneys who were on detail  from other DOJ components. According to OPR’s Deputy Counsel,  because these attorneys were on detail, they lacked the expertise to most  efficiently assess and investigate complaints. Often, because of these  attorneys’ short tenure with the office, they did not resolve complaints  before completing their detail. New attorneys assigned to these matters  would restart the inquiry or investigation, which would increase the  amount of time it took for complaints to be resolved. The Deputy Counsel  reported that, prior to 2011, OPR sometimes took as long as 90 days or  more to initially assess complaint allegations and 2 years or more to  completely investigate and resolve a complaint.
To better ensure the timeliness of complaint review and resolution, OPR  redesigned its process to ensure that OPR reviews complaints for merit  during an inquiry phase before OPR approves resources for an  investigation. According to OPR’s Deputy Counsel, OPR made this  change to ensure that it expends staffing resources only for investigations  on complaints where there is a reasonable likelihood of a misconduct  finding. According to OPR’s Deputy Counsel, OPR currently is staffed  with 21 attorneys with experience in investigating professional misconduct  allegations to review and investigate complaints and does not have  attorneys detailed from other components. The Deputy Counsel said that  OPR no longer has to expend additional time and resources training staff  on short details so OPR can assess and investigate complaints more  quickly. Furthermore, the Deputy Counsel reported that changes to  OPR’s intake process have reduced the amount of time it takes OPR to  initially assess the merit of a complaint from up to 90 days to  approximately 7 days.
The Deputy Counsel stated that OPR’s goal is to review a complaint  within 1 week of receipt, complete an inquiry within 6 months, and  complete an investigation within 12 months. We found that in 2013 it took  OPR an average of 3 months to complete an inquiry and 12 months to   Figure 2 shows a decrease in the average  complete an investigation.time to complete an inquiry from 7 months in fiscal year 2008 to 3 months  in fiscal year 2013. The Deputy Counsel attributed this decrease to OPR’s  new approach to reviewing and assessing all complaints for merit before  it approves resources for an investigation.
OPR has taken steps to increase the efficiency of its complaint review  process by better focusing its time and resources on those cases where  misconduct most likely occurred. In 2011, OPR dedicated one full-time  Senior Associate Counsel to determine whether misconduct complaints  warrant further review, in part to manage complaints more quickly and  efficiently. The Senior Associate Counsel works with three full-time staff  to determine the merit of the average 1,000 complaints it receives each   The Senior Associate Counsel described the process used to  year.assess a complaint. When a complaint comes in, the staff review and  assess it against several criteria, such as whether OPR has jurisdiction or  another component is more appropriate to manage the issue, whether the  complaint includes enough information for OPR to assess it, or whether  the courts are still considering the conduct included in the complaint.  These kinds of complaints can include, for example, complaints from  private individuals about the performance of judges or local or federal law  enforcement officers, or numerous complaints from incarcerated  prisoners about their treatment while incarcerated—all of which are  generally outside of OPR’s jurisdiction. OPR staff propose an initial  decision and the Senior Associate Counsel or another supervisory  Associate Counsel reviews the decision before taking action. OPR  informs the complainant of its decision, and may refer some complaints to  the components with jurisdiction for these issues, as appropriate. The  Counsel for OPR and Deputy Counsel stated that this process has helped  to increase the efficiency of the complaint review process because it  allows OPR management to focus its time and resources on those cases  where misconduct most likely occurred.
The Deputy Counsel explained that the remaining complaints typically  include all referrals from judicial decisions or judicial criticism, the  Congress, DOJ attorneys, and components, as well as high-profile or  significant matters. The Senior Associate Counsel assesses and  evaluates all of these complaints to determine whether OPR should  accept the complaint for inquiry or investigation. If the Associate Counsel  determines that the complaint is outside of OPR’s jurisdiction or does not  establish facts that would likely support a misconduct finding, the Senior  Associate Counsel notifies the complainant that the matter does not merit  further OPR review. For any remaining complaints from these sources,  the Senior Associate Counsel prepares a brief memo describing the  complaint and applicable circumstances, and recommending that OPR  either reject or accept the complaint. The Deputy Counsel or Counsel  reviews the memo and must approve the recommendation to reject or  accept the complaint. OPR notifies the complainant of any rejected  complaints and will open up an inquiry on any complaints that it accepts  for further review.
According to OPR’s Annual Report for fiscal year 2013, OPR’s review of  complaints eliminated approximately 85 percent (693 of 819) of  complaints for that fiscal year. OPR’s Annual Report does not provide  data on the number of complaints rejected for being outside of OPR’s  jurisdiction or for not having sufficient information to support a misconduct  finding. However, according to OPR’s Deputy Counsel, OPR’s case  management system maintains documentation on each complaint and  OPR’s disposition of the complaint. Figure 3 shows how many complaints  OPR opened for review and the number it rejected from fiscal years 2008  through 2013.
According to the Senior Associate Counsel, he and his staff make  decisions to reject matters using the criteria set forth in the Analytical  Framework and erring on the side of caution, so as to try to ensure that  they do not intentionally dismiss any instance of misconduct. According to  Deputy Counsel, he is confident of the Senior Associate Counsel’s  decisions because the Senior Associate Counsel has years of experience  at DOJ and OPR. According to the Deputy Counsel, OPR management  meets with the Senior Associate Counsel twice a month to discuss how to  manage incoming complaints. The Deputy Counsel explained that this  gives them the ability to monitor the Senior Associate Counsel’s activities  and decisions, and the opportunity to discuss complaints of note.
Given the relatively high number of complaints rejected and concerns  about the transparency of OPR’s process, we considered what steps  OPR takes to help ensure supervisory review of the process for  evaluating incoming complaints. We found that OPR’s procedures for  determining to reject or elevate a complaint are designed consistent with  federal internal control standards that call for management to review staff  activities to ensure that agency goals and objectives are met.
section_title: OPR Actions to Ensure Consistency and Transparency of Its Investigations
paragraphs: OPR implemented office-wide procedures to help ensure consistency of  its professional misconduct investigations. For example, according to  OPR’s Deputy Counsel, OPR instructs staff who are investigating  complaints of misconduct to develop an investigative plan, which is a  roadmap detailing what steps staff will take to resolve the complaint and  considers prior investigations to see how OPR handled cases similar in  nature. The Deputy Counsel also stated that OPR management  discusses with OPR attorneys and supervisors the investigative plan prior  to converting the matter to an investigation and as the investigation  progresses. According to OPR’s Deputy Counsel, attorneys meet with the  Counsel for OPR and the Deputy Counsel as well as their supervisor to  discuss the progress of ongoing investigations. Once OPR completes an  investigation, OPR senior management reviews all investigative findings  before making a determination on whether an attorney had engaged in  professional misconduct. The Counsel for OPR approves all findings of  professional misconduct before they are closed and referred to either  PMRU or the component to determine whether to impose disciplinary  action.
In addition, the Deputy Counsel said that to ensure the transparency of its  decision making, OPR makes its Analytical Framework, as well as its  policies and procedures for handling professional misconduct  investigations, available to all DOJ employees and the general public.
The Deputy Counsel stated that these documents, available on OPR’s  website, outline how OPR reviews and investigates complaints, and  provide the criteria OPR uses when determining whether an attorney  engaged in professional misconduct. In addition, the Deputy Counsel  stated that OPR takes steps to notify the public and relevant parties on  the results of its findings. For example, OPR sends a letter of its findings  to complainants at the conclusion of an inquiry or investigation, and  provides investigative reports to DOJ management and relevant state bar  associations when appropriate to notify them of the misconduct issues  found. OPR generally also allows the attorney who is the subject of an  investigation to provide a written defense to OPR’s tentative findings of  professional misconduct prior to finalizing a report of investigation. Upon  written request, OPR also provides its findings to federal judges who have  made rulings criticizing the conduct of DOJ attorneys. Furthermore,  OPR’s Annual Reports provide statistics on professional misconduct  inquiries and investigations as well as summaries of cases in order to  give the public more detail on the types of misconduct engaged in by DOJ  attorneys.
section_title: Although Instances of Professional Misconduct May Go Unreported, DOJ Is Taking Steps to Help Better Identify and Prevent DOJ Attorney Misconduct
paragraphs: DOJ faces a number of factors outside of its control when it comes to  identifying professional misconduct. For example, according to OPR’s  Deputy Counsel, some instances of professional misconduct may go  unreported to OPR because attorneys do not deem the behavior  significant enough to report. The Deputy Counsel stated that cases of  misconduct may not be referred to OPR because the attorney’s  supervisor has concluded that misconduct did not occur. Supervisors  have available to them the criteria set forth in the Analytical Framework to  determine whether allegations and actions constitute misconduct.  Furthermore, while supervisors and attorneys are required to report  professional misconduct, failure to do so does not necessarily result in a  penalty. According to OPR’s Deputy Counsel, DOJ does not have any set  schedule of penalties if an attorney fails to report professional misconduct  for at least two reasons. First, discipline must be imposed on an individual  basis, taking into consideration established factors, and DOJ prefers the  flexibility to recommend disciplinary measures on a case-by-case basis  rather than being restricted to a set of predetermined penalties. Second,  according to OPR’s Deputy Counsel, imposing penalties that are not  based upon individual conduct and circumstances may serve to  discourage attorneys from reporting misconduct. OPR’s Deputy Counsel  stated that OPR, through its training and outreach to employees,  continually encourages attorneys to report misconduct.
Third-party stakeholders seeking to strengthen oversight of attorneys who  engage in professional misconduct also identified factors that  stakeholders believe make it difficult for OPR to fully recognize  professional misconduct. These factors include, among others, the fear of  retaliation for reporting the professional misconduct of colleagues or  supervisors, and the presumption that an attorney who willingly engaged  in misconduct is not going to report his or her actions to OPR. OPR also  has no authority over judges and defense attorneys and OPR cannot  compel them to report misconduct when it occurs. However, according to  OPR’s fiscal year 2013 Annual Report, OPR receives allegations of  misconduct from attorneys and judges. According to OPR’s Annual  Report, such allegations constituted approximately 42 percent of all  investigations opened, and allegations from department attorneys  constituted approximately 46 percent of all investigations opened.
subsections: section_title: OPR Actions to Identify Misconduct
paragraphs: OPR is taking actions to help it better identify instances of potential  professional misconduct that go unreported. For example, OPR routinely  conducts searches of available judicial opinions to help detect potential  cases of misconduct that judges and other attorneys do not report directly  to OPR. Specifically, OPR utilizes Westlaw—an online legal research  database for legal and law-related materials and services—to conduct  nationwide searches of available judicial opinions that may indicate  criticism of government attorneys or professional misconduct that may not  have been reported to OPR. OPR assistant attorneys review the results  from the Westlaw searches and determine whether to forward the results  for further review.most identify about one case a month where a DOJ employee may have  engaged in professional misconduct but did not report it to DOJ.  According to OPR’s Deputy Counsel, OPR also reviews media sources  on a daily basis, such as newspapers, websites, and internal DOJ  publications on recent court cases. According to the Deputy Counsel,  when OPR identifies a matter that should have been reported but was  not, OPR includes in its inquiry or investigation why the matter was not  properly reported and PMRU will take this into account when determining  the penalty. In addition, OPR regularly meets with DOJ attorneys to train  them on professional responsibility standards, including their  responsibility to report misconduct, OPR’s complaint resolution process,  and the logistics of referring a misconduct case to OPR. Furthermore,  OPR tracks the extent to which any attorneys or supervisors have  repeatedly engaged in professional misconduct. According to the Deputy  Counsel, OPR reviews the role of supervisors in managing such attorneys  accused of misconduct during its inquiries and investigations.
section_title: DOJ Actions to Prevent Misconduct
paragraphs: DOJ takes several actions to help prevent instances of professional  misconduct among department attorneys, with significant efforts devoted  to training. For example, in 2009 DOJ created the National Discovery  Coordinator (NDC) position to develop, implement, and administer  discovery training for department attorneys to address concerns about  department attorneys failing to meet their discovery obligations, such as  in the Ted Stevens trial. Discovery Blue Book—a comprehensive legal analysis and source of  advice on criminal discovery practices—to help attorneys better  understand their discovery obligations.
Attorneys in the Ted Stevens trial found to have violated their discovery obligations by  failing to disclose statements by prosecution witnesses from trial preparation sessions and  by failing to disclose information that contradicted prosecutorial evidence, according to a  May 2012 DOJ memo.
Deputy Counsel, DOJ requires that all litigators take 2 hours of  professional responsibility training each year. To institutionalize the  department’s efforts to address discovery obligations, DOJ amended the  USAM to formalize the requirements for professional responsibility  training. In addition, DOJ has established the Professional Responsibility  Advisory Office to assist attorneys with questions and concerns related to  the attorneys’ ethical obligations.
section_title: DOJ Does Not Ensure Discipline Is Implemented or Consistent and Some Attorneys Found to Have Engaged in Misconduct Receive Performance Awards
subsections: section_title: Ensuring Discipline Is Implemented
paragraphs: DOJ does not require components to demonstrate that attorneys found to  have engaged in professional misconduct serve the discipline imposed  upon them. EOUSA—the component that provides administrative support  to USAOs—recently developed a mechanism to require USAOs to  demonstrate that discipline for professional misconduct has been  implemented, but other DOJ components do not have such a mechanism.  We reviewed 40 cases for which OPR made a finding of professional  misconduct for attorneys within USAOs and the Criminal Division and that  PMRU assessed for disciplinary action, from fiscal years 2011 through  2013 (37 USAO cases and 3 Criminal Division cases). According to our  analysis of OPR, EOUSA, and Criminal Division data, 16 of these  attorneys (40 percent) resigned or retired either before OPR could  complete its investigation or before PMRU could impose discipline. At the  time of our request, EOUSA had documentation to support the  resignations or retirements for 8 of these 16 attorneys (50 percent) but no  longer had documentation for the other 8 because of record retention  requirements. PMRU decided and imposed discipline for another 22 of  the 40 attorneys (19 USAO attorneys and 3 Criminal Division attorneys).  Our review found that 1 of these USAO attorneys did not serve the  disciplinary sentence imposed until our inquiry uncovered this condition. A  representative from EOUSA’s General Counsel’s Office reported that the  attorney went undisciplined for 2 years before EOUSA became aware of  this situation and took action to ensure that discipline was implemented.PMRU imposed no discipline for the 2 remaining attorneys within USAOs  because it found poor judgment in one case and the last case remains  pending. EOUSA had documentation showing that components  implemented discipline for 17 of these 19 cases while the Criminal  Division had documentation for 2 of 3. However, EOUSA could not  provide documentation of final actions for 2 cases and the Criminal  Division could not provide documentation for 1 case.
An official from EOUSA’s General Counsel’s Office reported that at the  time of our finding, EOUSA was in the process of revising its procedures  for documenting and implementing discipline to better ensure  accountability over disciplinary decisions in response to a DOJ OIG audit,  completed in February of 2014.requires USAOs to provide documentation to EOUSA’s General  Counsel’s Office certifying that the USAO implemented the discipline  imposed for any misconduct finding. EOUSA maintains all documentation  related to professional misconduct cases in its case management system.
This official stated that EOUSA now  According to the Associate Deputy Attorney General, other than EOUSA,  no other DOJ component has similar procedures or mechanisms in place  to ensure that discipline for professional misconduct is implemented. One component reported that it had no need to implement a process  because OPR has not found any of its attorneys to have engaged in  professional misconduct. While this may be true to date, the component is  not prepared to ensure discipline is implemented if OPR does have  misconduct findings in the future. Another component reported that when  OPR finds that an attorney engaged in misconduct, component  management works with the attorney’s supervisor to ensure that  discipline is implemented. Nevertheless, this component does not have  an internal control in place to be able to demonstrate that the component  has implemented the discipline.
The Criminal Division reported that it follows up with section management to ensure that  they have implemented the discipline PMRU imposed, but does not have specific  requirements in place for ensuring that discipline for misconduct is implemented. found that EOUSA was unable to determine whether discipline was  implemented or evaluate disciplinary trends among USAOs because of  lack of documentation. EOUSA has since taken steps to address OIG’s  concerns, according to an EOUSA official. Although these OIG reports  focus more broadly on DOJ’s discipline system rather than professional  misconduct, they identify systemic issues related to DOJ’s ability to hold  employees and attorneys accountable for their actions.
Neither DOJ nor component management requires its offices that impose  discipline to demonstrate that they actually implemented the discipline,  such as by requiring that offices provide components copies of the  Standard Form 50 to document personnel action or other documentation  that would show the discipline implemented—similar to the mechanism  EOUSA recently established in response to OIG’s findings. According to  OPR’s Deputy Counsel, OPR tracks all matters in which OPR found  misconduct and discipline has not been decided by preparing a quarterly  report for senior management. OPR removes cases from its report only  once OPR has confirmed with PMRU or the component that discipline  has been imposed. However, DOJ does not have a mechanism in place  to ensure that component management actually implements discipline  once it has been imposed. Federal agencies are required to implement  disciplinary systems consistent with federal regulations developed by the  Office of Personnel Management (OPM).Deputy Attorney General agreed that requiring components to  demonstrate that discipline is implemented is an important step in  ensuring that attorneys are disciplined for violations of professional  standards, and DOJ could do more to ensure that discipline for  misconduct is implemented agency-wide. By requiring that component  management demonstrate that it has implemented discipline, DOJ will  have better oversight of disciplinary decisions to ensure they are carried  out agency-wide.
In addition, DOJ’s Associate  Disciplinary action is not only punitive, but preventive, as it sends a  message to attorneys across DOJ that there are consequences for  misconduct. Standards for Internal Control in the Federal Government call  for control activities to be established to ensure that management’s  directives are carried out. An example of such a control activity is a  mechanism for ensuring that discipline for professional misconduct is  implemented. Requiring components that impose discipline to  demonstrate that they actually implemented the discipline, as EOUSA has  required, will help provide reasonable assurance that all attorneys are  held accountable for professional misconduct.
section_title: Consistent and Timely Discipline Decisions
paragraphs: DOJ has plans to help ensure consistent and timely decisions about  discipline for attorneys who OPR finds to have engaged in professional  misconduct, but has not yet implemented these plans.DOJ did not provide  GAO with reasons for why it has not yet taken action to implement these  changes. DOJ plans to expand using PMRU as the official disciplinary  component for department attorneys found to have engaged in  misconduct from USAOs and the Criminal Division to all litigating  components. According to a January 14, 2011 memo from the Attorney  General, because the department employees handle disciplinary matters  as only one of many assigned responsibilities, disciplinary procedures at  DOJ have resulted in delays in completion of the disciplinary process and  create the risk of inconsistent application in disciplinary measures for  similar offenses. The Attorney General stated that using PMRU—which  focuses exclusively on such disciplinary matters—for department  attorneys found to have engaged in professional misconduct will help to  address these issues.
According to the Associate Deputy Attorney General, the department is  currently reviewing a memo that would bring all divisions under PMRU’s  disciplinary process but has no timetable for implementing these  changes. Given that the department has not taken action in almost 4  years on the Attorney General’s original January 2011 memo calling for  the change with PMRU, establishing near-term milestones for  implementing this change would help to provide the department with  some accountability for achieving the Attorney General’s goal. Using  milestones as a means for management for meeting established agency  objectives is consistent with project management criteria found in A Guide  to the Project Management Body of Knowledge. Setting milestones to  ensure the needed changes are implemented will help provide DOJ with  reasonable assurance that attorneys who OPR finds to have engaged in  professional misconduct are disciplined in both a timely and consistent  manner.
section_title: Providing Performance Awards
paragraphs: To address concerns that attorneys found to have engaged in  professional misconduct received performance awards or a promotion,  we asked EOUSA and the Criminal Division to provide us data on the  number of attorneys receiving an award or promotion within 1 year of  PMRU’s disciplinary decision. We found that DOJ awarded 9 attorneys  that PMRU disciplined a division-level or discretionary award for good  performance within 1 year of PMRU’s decision. According to DOJ,  discretionary awards are of minimal value and an attorney’s division  management can approve these awards. Four attorneys within USAOs  received a time-off award for an average of about 22 hours while 2  attorneys with USAOs received lump sum cash awards between $1,100   In addition, 2 attorneys from USAOs received both a lump  and $2,000.sum cash and time off award. Similarly, 1 Criminal Division attorney  received a quality step increase award. None of the attorneys received a  department-level award, such as, a Senior-Executive Service, Attorney  General, or Presidential Award, all of which are vetted by the Senior  Executive Resources Board, a performance review board that is chaired  by the Associate Deputy Attorney General and composed of senior DOJ  officials. This performance review board vets nominated attorneys to  determine if they had misconduct and other performance or behavior- related issues and if these affected consideration for awards. DOJ  officials reported that many of the awards that these attorneys received  were based on specific performance during a rating year that did not  include the conduct that led to discipline. Accordingly, DOJ also stated  that there is nothing inconsistent with receiving a performance award for  outstanding or exemplary performance, yet previously being disciplined  for misconduct.
According to DOJ’s Deputy Assistant Attorney General for Human  Resources and Administration and Chief Human Capital Officer, DOJ  does not have an official policy for granting awards or for recognizing the  good performance of attorneys that have been accused of, or found to  have engaged in, professional misconduct. The Deputy stated that DOJ  components have the discretion to award employees with time-off and  cash awards as the components see fit. The Deputy stated that these  awards are of modest amounts and serve to boost morale and recognize  good performance in a timely manner.
section_title: Supervisors Use Managerial Discretion as well as DOJ Guidance and Other Support when Assigning Work to, and Overseeing, Attorneys
paragraphs: Supervisors of attorneys accused of, or found to have engaged, in  professional misconduct use managerial discretion when determining  what work responsibilities they will assign to these attorneys and ensuring  that these attorneys are complying with professional standards. According  to an official within EOUSA’s General Counsel’s office, DOJ provides for  the use of managerial discretion in dealing with personnel issues to allow  supervisors the flexibility in managing the workload and staff. In surveying  20 USAOs and 28 litigating sections, respondents to our questionnaire  reported that, in addition to using managerial discretion, they use other  agency-wide resources and guidance to assist them in making such  decisions. For example, DOJ has general guidance for supervisors,  outlined in several administrative directives issued by OARM, on  disciplinary actions that they can take to ensure that employees are  complying with standards of conduct, including guidance for making  determinations about work assignments for attorneys under investigation   DOJ also provides guidance to supervisors on how to  for misconduct.manage attorney departures from professional standards. For example,  the USAM provides guidance on standards of conduct for DOJ attorneys  and the U.S. Attorneys’ Procedures help supervisors apply DOJ  procedural guidance on a variety of issues, including personnel  management. In addition, several DOJ internal offices offer support for  supervisors when managing professional misconduct, such as the  Professional Responsibility Advisory Office, EOUSA’s General Counsel’s  Office, and OPR.
Over half of our respondents,12 of 20 USAOs and 20 of 28 litigating  sections, have had experience in managing attorneys accused of, or  found to have engaged in, professional misconduct. These respondents  reported that they assign work to attorneys on a case-by-case basis but  based on a variety of factors, including the following:
The nature of the alleged misconduct. Sixteen USAOs and 19  litigating sections reported that they consider the seriousness of the  nature of the possible misconduct when assigning work  responsibilities or the circumstances contributing to the allegation or  finding of misconduct.
Trust. Seven USAOs and 4 litigating sections said that they  determine the extent to which the attorney can be entrusted with  responsibility for conducting investigations and prosecutions.
Nature of available work assignments. Five USAOs and 11  litigating sections reported that before making a determination about  what to assign an attorney found to have engaged in professional  misconduct, they determine whether the assignment relates to a  complaint of misconduct that OPR is investigating.
Attorney skill set and previous experience. Ten USAOs and 5  litigating sections reported that they consider the attorney’s prior  performance when determining work assignments, including whether  the attorney had a history of misconduct. One USAO reported that if  the offending attorney had a personal difficulty, such as a death in the  family that might have contributed to the misconduct, the office might  approach the finding as a one-time error and continue to assign the  attorney important cases but with closer supervision in light of the  OPR finding.
According to the Associate Deputy Attorney General, USAOs also  consider the availability of resources when assigning work assignments.
The Associate Deputy Attorney General reported that USAOs will often  assign attorneys to cases based on risk level and will use their  professional judgment to determine whether an attorney accused of, or  found to have engaged in, professional misconduct poses risk to a case  when determining work assignments. The remaining 8 USAOs and 8  litigating sections reported that they did not have experience in managing  attorneys accused of, or found to have engaged in, professional  misconduct. Nevertheless, 7 of these USAOs and 4 of these litigating  sections provided a variety of hypothetical examples of how they would  assign work responsibilities to these attorneys and cited factors they  would consider when doing so, which were similar to those discussed  above. Finally, 1 of the USAOs and 4 of the litigating sections did not  have experience in managing attorneys in these situations and did not  provide information on what factors they would consider when making  such determinations.
In addition to the factors cited above, respondents reported other issues  they consider when assigning work responsibilities. For example, they  may not assign work responsibilities to attorneys accused of professional  misconduct any differently than other attorneys until they consult with  EOUSA’s General Counsel’s Office or component management.  Specifically, one litigating section reported that it does not normally take  ongoing OPR investigations into consideration when making work  assignments unless the investigation casts doubt on the attorney’s  ongoing capacity to practice law on behalf of the federal government.  Respondents reported that they may also not consider allegations of  professional misconduct when assigning work responsibilities if they  determine that the allegation may lack merit. For example, one litigating  section reported that whether a pending OPR review should influence  work assignments depends, in part, upon the office’s evaluation of the  nature, seriousness, and merit of the allegation and the likelihood it may  lead to an OPR finding of professional misconduct. Finally, they may not  alter work assignments in situations where an attorney did not engage in  misconduct but did engage in other types of poor behavior, such as  committing negligent conduct or making a mistake. The respondents said  that they believe these types of issues are best addressed through  training and closer supervision.
According to respondents, DOJ provides guidance and training—such as  through the USAM and discovery training—to help ensure that attorneys  are abiding by professional standards. Furthermore, all 20 of the USAOs  and 26 of 28 litigating sections identified a variety of factors they use to  help ensure that supervisors are providing adequate oversight of their  attorneys who have been accused of, or have been found to have  engaged in, misconduct. These include, among others, requiring that management routinely discusses any performance or conduct issues  with staff attorneys and takes corrective actions accordingly; management reviews written products;  supervisors meet regularly with staff attorneys to review the status of  their cases or to routinely assess staff performance; and supervisors take training on how to provide adequate oversight of  attorneys’ work responsibilities.
Furthermore, 5 respondents reported that they routinely meet with judges  to address any concerns that arise regarding an attorney’s professional  responsibilities and obligations during the course of litigation. For  example, one USAO reported that the U.S. Attorney and other senior  management attend the quarterly meetings of the U.S. Magistrate Judges  in the district. According to this USAO, these meetings provide feedback  from the judiciary as to how the office is doing in handling cases before  the Magistrate Judges, and a venue to raise any problems or issues, such  as concerns about attorney conduct.
section_title: DOJ’s Policy Is Not to Provide Counsel for Its Attorneys for OPR Proceedings, but DOJ Paid $3.66 Million over 6 Years for Private Counsel Representation in Related Legal Proceedings
paragraphs: Under departmental policy, DOJ is not to authorize legal representation  for purposes of defending attorneys in proceedings that OPR conducts  because it is generally not in the interests of the United States to provide  federal employees with legal representation in internal agency   This policy also precludes legal  administrative investigations.representation to assist employees in preparing submissions to support  their defense in internal disciplinary investigations, or to represent  employees in agency disciplinary proceedings, including those that OPR  conducts.
Federal law provides the Attorney General with the authority “to attend to the interests of  the United States.” 28 U.S.C. § 517. See also 28 U.S.C. § 516 (providing for the Attorney  General’s authority to conduct litigation “in which the United States, an agency, or officer  thereof is a party, or is interested”). DOJ policy statements concerning individual capacity  representation are found at 28 C.F.R. §§ 50.15-50.16. be “in the interest of the United States.”employee acted within the scope of employment, DOJ’s starting  assumption is that it is in the interest of the United States to provide  representation.
According to DOJ, if an  According to DOJ officials, DOJ has long recognized that it serves the  government’s interest to represent federal employees who may face  personal liability, or a lawsuit, as a result of fulfilling their work  responsibilities, even where the employee has made a mistake but was  acting in good faith attempting to perform federal duties. As a result, in  certain instances, DOJ authorizes legal representation for DOJ attorneys  who are involved in legal proceedings for certain actions because the  attorneys were acting in their capacity as federal employees, even where  they are involved in a concurrent OPR or other internal investigation for  the same actions. For example, according to DOJ, assuming that an  attorney’s request for representation meets the criteria set forth in DOJ’s  policy statement, DOJ could provide representation for a DOJ attorney  who is the subject of a state bar proceeding while that attorney is also the  subject of an OPR investigation related to the same conduct. However,  representation would be limited to the state bar proceeding, not for  defense in the OPR investigation.
According to the Director of the Constitutional and Specialized Torts  Litigation Section (CSTL) within DOJ’s Civil Division—the primary section  that authorizes legal representation for federal employees—internal   In addition,  investigations are relatively common in high-profile matters.the Director said that DOJ does not assume that an internal investigation  will find that an employee has committed misconduct and, therefore, will  not automatically withhold representation from an attorney who is also  under investigation. Under its policies, before authorizing representation  in a case where there appears to exist the possibility of an OPR  investigation of the same subject matter, CSTL (or the relevant litigating  division) contacts OPR and the relevant prosecuting divisions within DOJ  to determine whether there is an open OPR investigation relating to the  matter for which representation is sought. CSTL (or the relevant litigating  divisions) also contacts OPR and the relevant prosecuting components  within DOJ to determine whether the employee requesting representation  is also the subject of a federal criminal investigation or a defendant in a  criminal case.
DOJ can authorize either direct representation—through a DOJ  attorney—or private counsel representation. Direct representation is the  most common form of legal representation, and DOJ provides this as the  default. During fiscal years 2008 through 2013, DOJ provided direct  representation in more than 5,300 matters. However, where there is a  conflict of interest among defendants, among other circumstances, DOJ  may pay for private counsel representation at DOJ’s expense to ensure  that each defendant receives appropriate representation for his or her  specific circumstances. We determined that DOJ expended $3.66  million from fiscal years 2008 through 2013 for private counsel  representation for 38 DOJ attorneys, in headquarters or in an USAO,  involved in 18 legal proceedings where there were also related OPR  investigations. This amount was about 23 percent of the total $16.1  million that DOJ expended for private counsel during this time period for  all matters in which at least one DOJ employee was represented. Costs  for private counsel representation across the federal government during  this time period totaled $25.5 million. In the related OPR investigations,  DOJ found 12 attorneys to have engaged in professional misconduct.
Situations can arise in a variety of circumstances where DOJ authorizes  representation through private counsel at DOJ’s expense, and there is  also a related OPR investigation. Ten of the 18 proceedings we identified  that had a related OPR investigation involved allegations of the failure to  disclose certain required evidence in the discovery process. For example:  In one instance, DOJ authorized private counsel at DOJ’s expense for  a department prosecutor involved in a state bar proceeding related to  allegations that the prosecutor had failed to disclose that a victim  stated he did not see who shot him. The bar recommended a 30-day  suspension, but the final decision remains pending. Given the bar’s  involvement, as well as the fact that the attorney left DOJ, OPR  closed the matter as an inquiry.
In another case, the trial court judge found that a number of  prosecutors had, among other things, filed a superseding indictment  in bad faith and failed to disclose evidence regarding cooperating  witnesses. The court of appeals rejected the original finding, among  other things, that the trial court had violated the constitutional right to  due process of the two lead prosecutors by sanctioning them without  notice to rebut the charges against them. Upon remand of the case to  the trial court, no further disciplinary proceedings were initiated. The  departmental investigation of these attorneys ultimately found that 1  had exercised poor judgment.
In another instance, DOJ authorized private counsel representation at  DOJ’s expense for a prosecutor to respond to a court order to show  cause why sanctions should not be imposed for the failure to disclose  exculpatory evidence.the violation was unintentional and the prosecutor was unlikely to  commit comparable errors in the future, so the court decided not to  impose sanctions. A related OPR investigation determined that 1  attorney involved in this case had engaged in professional misconduct  in reckless disregard of the attorney’s obligations and PMRU imposed  a suspension.
section_title: Conclusions
paragraphs: The manner in which DOJ attorneys exercise their decision-making  authority has far-reaching implications, in terms of justice and  effectiveness in law enforcement. Ensuring that federal attorneys are  held accountable when they do not meet their professional obligations  is important for providing the public with assurance that those  contributing to the fair administration of federal laws are not impairing  the government’s law enforcement efforts and are acting as good  government stewards. DOJ has taken actions to help better manage  its process for receiving and investigating complaints of professional  misconduct, but continues to face a number of factors outside of its  control when it comes to identifying misconduct. To help address  these factors, DOJ has implemented a variety of training programs for  its attorneys and implemented procedures to help detect instances of  misconduct that go unreported. However, until DOJ consistently  ensures that all attorneys found to have engaged in misconduct are  appropriately disciplined, DOJ cannot effectively address violations of  professional standards. By requiring that components demonstrate  they actually implemented the discipline imposed for misconduct, DOJ  can help provide Congress and the public reasonable assurance that  professional misconduct does not go unaddressed. Furthermore, by  requiring that DOJ establish near-term milestones for expanding  PMRU’s jurisdiction to all department attorneys, DOJ can better  ensure that it is addressing violations of professional misconduct for  all department attorneys in a timely and consistent manner.
section_title: Recommendations for Executive Action
paragraphs: To help provide Congress and the public with reasonable assurance that  attorneys found to have engaged in professional misconduct are  disciplined, and prevent delays in implementing this discipline, we  recommend that the Attorney General take the following two actions:  require components that impose discipline to demonstrate that they  actually implemented the discipline—similar to EOUSA’s requirement,  and establish near-term milestones that will hold the department  accountable for completing its goal to expand PMRU’s jurisdiction to  all department attorneys found by OPR to have engaged in  professional misconduct.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to DOJ for review and comment. On  November 26, DOJ’s Audit Liaison Group informed us via email that the  department concurred with our recommendations. In terms of our  recommendation on expanding PMRU’s jurisdiction, DOJ reported that  even though the department has not taken steps to do this, the change is  under active consideration. DOJ also provided technical comments, which  we incorporated in the report as appropriate.
We are sending copies of the report to the Attorney General of the United  States and appropriate congressional committees. In addition, the report  is available at no charge on the GAO website at http://www.gao.gov.
If you or your staff have any questions about this report, please contact  me at (202) 512-8777 or larencee@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. GAO staff who made key contributions to this  report are listed in appendix II.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: 1.  To what extent does the Department of Justice (DOJ) have processes  to manage complaints of professional misconduct to discipline  attorneys for findings of misconduct, and that advise on performance  awards for these attorneys?  2.  How do supervisors determine work responsibilities for attorneys  accused of, or who have been found to have engaged in, professional  misconduct?  3.  What are DOJ’s policies for paying or reimbursing the attorneys fees  and costs of departmental employees in actions relating to allegations  of contempt of court or prosecutorial misconduct, and what is the  extent to which DOJ is paying for such costs?
To address our first objective, we reviewed DOJ guidance related to  establishing and overseeing attorney standards of conduct, including  ethical conduct, such as outlined in the U.S. Attorneys’ Manual (USAM)  and published regulations. We also reviewed previous GAO and DOJ  Inspector General reports on DOJ’s processes for managing  professional misconduct and disciplining attorneys. We assessed federal  and agency-wide policies establishing DOJ’s processes for identifying,  investigating, and disciplining professional misconduct, including OPR’s  Analytical Framework, which provides guidance on the types of behavior  identified as professional misconduct, and how OPR conducts  investigations into misconduct. We compared OPR’s process for  supervisory review of professional misconduct complaints with internal  control standards to ensure that OPR management was providing  sufficient management oversight over the receipt and review of  misconduct complaints. We reviewed DOJ educational resources  available to assist attorneys in meeting their professional responsibilities,  as well as requirements for training related to professional responsibility  the department required of its attorneys. We reviewed OPR complaint  data from fiscal years 2008 through 2013 in order to describe what, if any,  changes occurred in the number of complaints and the length of time to  complete inquiries and investigations since DOJ’s process for managing  complaints of professional misconduct changed in 2011.We reviewed  OPR complaint data from fiscal years 2008 through 2013 in order to  describe what, if any, changes occurred in the number of complaints and  the length of time to complete inquiries and investigations since DOJ’s  process for managing complaints of professional misconduct changed in  2011. We reviewed internal DOJ personnel and disciplinary  documentation for 40 cases that the Office of Professional Responsibility  (OPR) investigated for professional misconduct between fiscal years  2011 and 2013 to determine the discipline imposed upon these attorneys,  and compared DOJ’s practices for documenting disciplinary actions with  internal controls. We reviewed these cases because they were the first  and only cases of professional misconduct, at the time of our review, for  which the Professional Misconduct Review Unit (PMRU) has jurisdiction  to review and assess for disciplinary action. For each case, we reviewed  internal DOJ personnel and disciplinary documentation to determine the  discipline imposed upon attorneys found to have engaged in professional  misconduct and the extent to which DOJ implemented disciplinary  decisions when attorneys were found to have engaged in professional  misconduct. We did not test whether discipline imposed was consistent  across offenses because the type and length of discipline is dependent  upon DOJ’s professional judgment. For these attorneys we also  determined whether DOJ had provided a performance award or  promotion to them within 1 year of PMRU’s disciplinary decision.
To identify what constituted a performance award we used criteria  provided by the Office of Personnel Management (OPM), which allows  agencies to provide one of four types of awards to federal employees:  lump-sum cash awards, honorary awards, informal recognition awards,  and time-off awards. We also reviewed DOJ-provided data to determine  whether these attorneys had received any DOJ-specific awards. In  addition, we interviewed the Deputy Assistant Attorney General for  Human Resources and Administration to determine how DOJ decides  which employees are eligible to receive an award. We also interviewed  senior-level DOJ officials within OPR, PMRU, the Criminal Division, the  Executive Office for U.S. Attorneys (EOUSA), and the Professional  Responsibility Advisory Office, and the National Discovery Coordinator to  obtain their views on how DOJ manages complaints of professional  misconduct and identifies actions DOJ has taken to help deter departures  from professional standards. We interviewed and reviewed the literature  produced by a variety of third-party stakeholders, such as advocacy  groups and academics, to obtain information on their perspectives on  DOJ’s efforts to address professional misconduct. Interviews with these  stakeholders cannot be generalized. However, they provide valuable  insights about DOJ’s abilities to effectively identify and address  professional misconduct within the department.
To address our second objective, we sent a questionnaire to 20 selected  U.S. Attorneys’ Offices (USAO) and 28 litigating sections within selected  DOJ components to collect information on the various types of policies  and procedures put in place to manage the work activities of attorneys  accused of or found to have engaged in professional misconduct. We  selected USAOs because officials from EOUSA’s General Counsel’s  Office stated that attorneys within the USAOs would be in the best  position to discuss management of the work activities of attorneys alleged  or found to have committed professional misconduct. We selected  litigating sections to provide additional examples of how the department  manages the work activities of attorneys alleged or found to have  committed professional misconduct. To ensure that we obtained  information across USAOs with varying workloads, we ordered DOJ’s 93  USAOs by size using office case workload hours provided in the U.S.  Attorneys’ 2012 Statistical Report, divided these into quartiles, and  randomly selected 5 USAOs within each quartile. We selected litigating  sections within DOJ components that have experience managing  attorneys subject to a complaint of professional misconduct between  fiscal years 2008 and 2013.to the Criminal Division, Civil Rights Division, Tax Division, Environment  and Natural Resources Division, Antitrust Division, and the Civil Division.  Because we used a nongeneralizable sample, our findings cannot be  used to make inferences about other USAOs or DOJ components. We  received responses from all 20 USAOs and 28 litigating offices within  DOJ components. We did not independently verify the data reported by  offices in the questionnaire; however, we interviewed senior-level officials  with EOUSA’s General Counsel to assess the reasonableness of the data  reported. We believe the data are reliable for our purposes. We also  interviewed officials within EOUSA to identify what challenges may arise  when managing attorneys are accused of, or who have been found to  have engaged in, professional misconduct, and to determine how they  manage attorneys’ work assignments.
Using these criteria, we sent questionnaires  To address our third objective, we analyzed DOJ’s policies for providing  legal representation to federal employees as outlined in 28 C.F.R § 50.15  and 28 C.F.R § 50.16. We assessed agency-wide policy guidelines  identifying the circumstances under which federal employees are eligible  to receive representation by private counsel at DOJ expense. We  collected data from the Constitutional and Specialized Torts Litigation  Section (CSTL) of the Civil Division— the primary section that authorizes  legal representation for federal employees and maintaining data on these  requests—and the Civil Division’s Office of Planning and Budget  Evaluation, on the number of cases for which DOJ approved legal  representation for federal employees, between fiscal years 2008 and  2013. We also collected cost data from DOJ on the total amount the DOJ  paid to provide legal representation by private counsel to federal  employees between fiscal years 2008 and 2013. We did not collect cost  data from DOJ on the amount it expended to provide direct representation  because of the time and difficulty required of DOJ to collect this data. We  did, however, collect cost data from DOJ on the amount expended for  private counsel because DOJ keeps receipts for expenditures made to  private counsel firms. We assessed the reliability of both sets of these  data by interviewing staff within CSTL and the Civil Division’s Office of  Budget. We concluded that these data were sufficiently reliable for the  purposes of this report. To determine the amount paid by DOJ for private  counsel representation for its attorneys where there was a related OPR  investigation, we asked CSTL to provide data on matters where private  counsel representation at DOJ expense was provided to attorneys in a  main justice component or USAO, for fiscal years 2008 through 2013.  OPR also provided information for each of these matters as to whether  there was related OPR inquiry or investigation; OPR may not have  investigated all persons to whom representation was granted. To  determine the nature of the matters—including whether they involved the  failure to disclose certain required evidence in the discovery process—we  reviewed bar disciplinary decisions, docket sheets, judicial opinions, and  other publically available documents describing allegations of  professional misconduct related to these matters.
We conducted this performance audit from September 2013 to December  2014 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.
section_title: Appendix II: GAO Contact and Staff Acknowledgements
subsections: section_title: GAO Contact
section_title: Staff Acknowledgements
paragraphs: In addition to the contact named above, Dawn Locke (Assistant Director);  Sara Margraf (Analyst-in-Charge); Wendy Dye; Lorraine Ettaro; Eric  Hauswirth; Jonathan Hutto; Tracey King; Linda Miller; Jessica Orr; Tovah  Rom; Joseph Som-Pimpong; and Janet Temko-Blinder made key  contributions to this report.