Attorney Professional Misconduct Matters

OPR receives allegations from a variety of sources, including U.S. Attorney’s offices and other Department components, courts, Congress, media reports, other federal agencies, state and local government agencies, private citizens, private attorneys, criminal defendants, civil litigants, and self-referrals.  OPR also regularly conducts its own searches to identify judicial findings of misconduct against Department attorneys. 

The Investigative Process

Because OPR’s inquiries and investigations involve a wide range of allegations, the investigative methods used vary accordingly.  Generally, however, the first step after receiving an allegation is to conduct an initial review of the allegations to determine whether further review is warranted.  This determination is based on several factors, including the nature of the allegation, its specificity, and its susceptibility to verification.  Most complaints received by OPR are determined not to warrant further review because, for example, the complaint appears on its face to be without merit, is outside OPR’s jurisdiction, or is unsupported by any evidence.  In such cases, OPR will close the matter without informing the subject attorney of the complaint.

When OPR has determined that an allegation warrants further review, OPR will initiate an inquiry.  In such cases, OPR may request additional information from the complainant, the subject attorney, and other sources.  If the requested information is sufficient to resolve the matter, OPR will close the matter at the inquiry stage. 

In cases that cannot be resolved based solely on the written record or that involve more serious allegations, OPR ordinarily initiates an investigation, which includes obtaining relevant documents, conducting witness interviews, and interviewing the subject attorney.   The decision to conduct an investigation does not give rise to a presumption of professional misconduct.  OPR makes professional misconduct findings only after conducting a full investigation. 

OPR’s Standard of Review

A professional misconduct finding is appropriate when a preponderance of the evidence establishes that the attorney intentionally violated, or recklessly disregarded, a clear and unambiguous legal obligation or professional standard.  In some cases, OPR may determine that the attorney did not commit professional misconduct, but the circumstances warrant another finding.  In those cases, OPR may consider whether the attorney exercised poor judgment, made a mistake, or otherwise acted inappropriately.  OPR also may determine that the subject attorney acted appropriately under the circumstances.

The Essential Elements for a Professional Misconduct Finding

OPR will find that a Department attorney committed professional misconduct when a preponderance of the evidence establishes the following essential elements:

(1) A violation of a clear and unambiguous legal obligation or professional standard; and

(2) The violation was intentional, or resulted from the attorney’s reckless disregard of the clear and unambiguous legal obligation or standard.

Violation of an Obligation or Standard

Department attorneys are subject to various legal obligations and professional standards in the performance of their duties.  For example, attorneys are required to comply with legal obligations imposed by the Constitution, statute, evidentiary or procedural rules, controlling case law, and local rules.  In addition, attorneys must comply with standards of conduct imposed by the attorney’s licensing authority, the jurisdiction in which the attorney is practicing, and Department regulations and policies.  In its investigations, OPR will determine whether the subject attorney has violated a clear and unambiguous legal obligation or standard.  In so doing, OPR will consider the attorney’s affirmative actions, as well as actions that the attorney failed to take. 

Intentional Conduct

An attorney’s violation is intentional when the attorney engages in conduct that is either purposeful or knowing.  Conduct is purposeful when the attorney takes or fails to take an action in order to obtain a result that is unambiguously prohibited by the applicable obligation or standard.  By contrast, conduct is knowing when the attorney takes or fails to take an action with knowledge of the natural or probable consequences of the conduct, and those consequences are unambiguously prohibited by the applicable obligation or standard.

Conduct in Reckless Disregard of an Obligation or Standard

Alternatively, OPR may conclude that a violation resulted from the attorney’s reckless disregard of the applicable obligation or standard.  This determination is based on three factors. 

First, OPR considers whether the attorney knew, or should have known, of the obligation or standard based on the attorney’s experience and the unambiguous nature of the obligation or standard. 

Second, OPR considers whether the attorney knew, or should have known, that the attorney’s conduct was substantially likely to violate or cause a violation of an obligation or standard based on the attorney’s experience and the unambiguous applicability of the obligation or standard. 

Third, OPR considers whether the attorney nonetheless engaged in the conduct, which was objectively unreasonable under all the circumstances. 

Ultimately, after considering the nature and circumstances of the attorney’s conduct and the facts known to the attorney, OPR will find that an attorney’s disregard of an obligation or standard is reckless if the conduct amounted to a gross deviation from the standard of conduct that an objectively reasonable attorney would observe in the same situation.

Conclusions Other than Professional Misconduct

In some cases, OPR may conclude that a subject attorney’s conduct does not satisfy the elements necessary for a professional misconduct finding, but the circumstances warrant another finding.  In those cases, OPR may consider whether the attorney exercised poor judgment, made a mistake, or otherwise acted inappropriately under the circumstances.  OPR also may determine that the subject attorney’s conduct was appropriate under the circumstances.

Poor Judgment

To determine whether an attorney exercised poor judgment, OPR considers whether the attorney had appropriate alternatives available, but the attorney chose an action or course of action that was in marked contrast to that which the Department would reasonably expect of an attorney exercising good judgment.  For example, an attorney exercises poor judgment when the attorney takes an action in a situation involving obviously problematic circumstances without first seeking supervisory advice or guidance, because the Department would reasonably expect that an attorney exercising good judgment would consult with a supervisor before proceeding in such circumstances.

Mistake

A mistake finding is based on OPR’s determination that the attorney’s conduct resulted from excusable human error despite the attorney’s exercise of reasonable care under the circumstances.  OPR considers various factors when examining whether an attorney’s error was excusable.  Those factors include, for example, the attorney’s opportunity to plan and reflect on the possible and foreseeable consequences of the conduct; the significance of the conduct compared with the breadth and magnitude of the attorney’s overall responsibilities and actions; and the extent to which the error was consistent with the attorney’s usual conduct.