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

Letter

Background

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.

DOJ’s Process for Managing Complaints of Professional Misconduct

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.

Independence and Transparency

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.

DOJ Has Processes to Manage Complaints of Professional Misconduct, but Faces Challenges in Disciplining Attorneys

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.

OPR Has Implemented Processes to Better Manage Professional Misconduct Complaints

OPR Actions to Increase the Timeliness of Its Complaint Review Process

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.

OPR Actions to Ensure Consistency and Transparency of Its Investigations

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.

Although Instances of Professional Misconduct May Go Unreported, DOJ Is Taking Steps to Help Better Identify and Prevent DOJ Attorney Misconduct

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.

OPR Actions to Identify Misconduct

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.

DOJ Actions to Prevent Misconduct

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.

DOJ Does Not Ensure Discipline Is Implemented or Consistent and Some Attorneys Found to Have Engaged in Misconduct Receive Performance Awards

Ensuring Discipline Is Implemented

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.

Consistent and Timely Discipline Decisions

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.

Providing Performance Awards

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.

Supervisors Use Managerial Discretion as well as DOJ Guidance and Other Support when Assigning Work to, and Overseeing, Attorneys

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.

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

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.

Conclusions

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.

Recommendations for Executive Action

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.

Agency Comments and Our Evaluation

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.

Appendix I: Objectives, Scope, and Methodology

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.

Appendix II: GAO Contact and Staff Acknowledgements

GAO Contact

Staff Acknowledgements

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.