U.S. Department of Justice
Office of Professional Responsibility
Policies and Procedures
U.S. Department of Justice
Office of Professional Responsibility
Policies and Procedures
1. History of the Office of Professional Responsibility
The Department of Justice Office of Professional Responsibility (OPR) was created in 1975 as one response to the revelations of ethical abuses and misconduct by Department of Justice officials in the Watergate scandal. Pursuant to 28 C.F.R. § 0.39a, OPR reports directly to the Attorney General and Deputy Attorney General. The Office is headed by a Counsel and Deputy Counsel, and is staffed by Associate Counsel and Assistant Counsel.
2. The Role and Authority of OPR
OPR has jurisdiction to investigate allegations of misconduct involving Department attorneys that relate to the exercise of their authority to investigate, litigate or provide legal advice, as well as allegations of misconduct by law enforcement personnel when they are related to allegations of attorney misconduct within the jurisdiction of OPR.1 Other allegations of misconduct by Department attorneys that do not fall within the jurisdiction of OPR are investigated by the Office of the Inspector General (OIG).2 OIG is required to notify OPR of the existence and results of any OIG investigation that reflects upon the professional ethics, competence or integrity of a Department attorney. In such cases, OPR is directed to take appropriate action.
In addition to reporting its findings and conclusions in individual investigations, OPR is also charged with providing advice to the Attorney General and Deputy Attorney General concerning the need for changes in policies and procedures which become evident during the course of OPR's investigations.
3. Allegations that Must be Reported to OPR
All Department employees have a duty to report to OPR, or to their supervisor or their component's internal affairs office for referral to OPR, any allegations of misconduct by a Department attorney that relate to the exercise of the attorney's authority to investigate, litigate or provide legal advice, as well as allegations of misconduct by law enforcement personnel when such allegations are related to allegations of attorney misconduct within the jurisdiction of OPR. 28 C.F.R. § 45.12. Chapter 1-4.100 of the United States Attorneys' Manual (USAM), entitled "Allegations of Misconduct by Department of Justice Employees - Reporting Misconduct Allegations," further provides that:
4. Receipt and Initial Review of Allegations of
Misconduct
OPR receives allegations against Department attorneys from a variety of sources, including self-referrals and referrals of complaints by officials in U.S. Attorneys' offices and litigating divisions, private attorneys, defendants and civil litigants, other federal agencies, state or local government officials, judicial and congressional referrals, and media reports. OPR also conducts periodic searches of legal databases to identify opinions containing judicial findings of misconduct.
Information provided to OPR may be confidential. In appropriate cases, OPR will disclose that information only to the extent necessary in order to resolve the allegation.
Upon receipt, OPR reviews each allegation and determines whether further investigation is warranted. The determination whether to conduct an inquiry and/or full investigation in a specific case is a matter of investigative judgment. Many factors are weighed, including the nature of the allegation, its apparent credibility, its specificity, its susceptibility to verification, and the source of the allegation. OPR ordinarily completes investigations relating to the actions of attorneys who have resigned or retired in order to better assess the litigation impact of the alleged misconduct and to permit the Attorney General and Deputy Attorney General to judge the need for changes in Department policies or practices.
A decision to conduct an inquiry or full investigation in a matter does not give rise to a presumption of professional misconduct nor does it shift the burden of proof to the person being investigated.
5. Judicial Findings of Misconduct and Allegations
in the Course of Litigation
Judicial findings of misconduct are, except in extraordinary cases, expeditiously investigated by OPR regardless of any planned appeal. Depending on the circumstances, magistrate judges' recommendations may result in an inquiry prior to review by the District Court. Oral statements by judges are not usually considered "findings" resulting in an automatic OPR investigation, but should be reported to the U.S. Attorney or appropriate supervisor for a determination of whether an OPR referral is required.
If an allegation of misconduct made during the course of litigation is not summarily denied or overruled by the court, it must be brought to the supervisor's attention. If the supervisor determines that the allegation is non-frivolous and would constitute serious misconduct if true, it must be reported to OPR.
6. The Investigative Process in a Typical Matter
OPR's investigations involve a wide range of allegations, and the investigative methods used vary accordingly. The vast majority of complaints received by OPR each year are reviewed and determined not to warrant investigation because, for example, the complaint is frivolous on its face, it is vague and unsupported by any evidence, or it is not within OPR’s jurisdiction. If OPR closes a matter without investigation this fact is recorded in OPR’s files, and the attorney alleged to have engaged in misconduct receives no notice of the complaint.
In some cases, OPR determines that further information is needed to resolve the matter. The first step is usually to request a written response from the attorney involved in the allegation. Requests for responses to allegations should be answered promptly and thoroughly. Supporting documentation and any other relevant material should be included with the response, and other individuals with relevant information should be identified. However, in order to avoid any appearance of attempting to coordinate accounts, the attorney involved should not interview other witnesses or ask them to prepare written statements. The response should not be edited or revised by any other Department attorney or official. If an attorney’s trial schedule or other professional commitments preclude a response within the period requested, an extension of time may be arranged by contacting OPR.
In requesting a written response, OPR asks the attorney involved to provide pertinent information regarding his or her professional background and experience including his length of service and positions held with the Department. In order to determine what state bar rules may apply to the matter, OPR also asks the attorney involved to list each jurisdiction in which he or she maintains bar membership, regardless of his category of membership (e.g., active, inactive, associate, or some other membership category). In addition, OPR asks if the allegation has been reported in the public media, and if so, that copies of any such stories or broadcasts be provided to OPR. This information is necessary in order to determine, when the matter is concluded, whether preparation of a public summary is appropriate (see 12, below).
In the case of a self-referral or referral by a supervisor, it is not necessary to await OPR's request before sending explanatory material. A written response to an allegation may be sent in anticipation of OPR's request -- either at the time the allegation is reported to OPR, or as soon thereafter as it can be prepared.
In cases that cannot be resolved based on the written response and relevant documents, OPR conducts a full on-site investigation. Case files, investigative files, or other relevant documents may be reviewed. Interviews of witnesses with information relevant to the matter are conducted. Interviews are ordinarily conducted by two OPR attorneys. The complainant is usually interviewed first. Witnesses identified by the complainant and by OPR may be interviewed next. An employee being interviewed may take notes but may not tape record the interview. In addition, all complainant and witness interviews are ordinarily tape recorded. A copy of the tape recording is not ordinarily provided to the interviewee(s).
All Department employees have a duty to cooperate with OPR investigations, and to give information that is complete and candid. Employees who refuse to cooperate with OPR investigations may be subject to formal discipline, including removal. 28 C.F.R. § 45.13.
7. Interview of the Person Alleged to have Committed
Misconduct
In cases in which OPR determines that on-site interviews are necessary, OPR ordinarily interviews the attorney alleged to have engaged in misconduct at or near the end of its investigation, when the allegations have been fully developed. Most investigations are administrative in nature; in the instances in which the allegations involve criminal conduct, the attorney is so advised. In such cases, the subjects are not required to participate in an investigation unless they are informed that their statements will not be used to incriminate them in any criminal proceeding.
An attorney alleged to have engaged in misconduct is interviewed alone unless counsel is permitted to attend (see below). At OPR’s discretion in the interest of the investigation, the attorney may be sworn pursuant to 5 U.S.C. § 303. The interview is ordinarily transcribed by a court reporter. At the conclusion of the interview, the attorney will be given an opportunity, subject to a confidentiality agreement, to review the transcript and to provide a supplemental written response and additional documents relevant to the investigation. The confidentiality agreement requires return of the transcript and any copies together with any supplemental materials and the agreement will become an attachment to the transcript.
In the interview, the attorney alleged to have committed misconduct will be asked to address each of the outstanding issues and allegations. He or she may suggest witnesses to be interviewed, but such interviews are discretionary with OPR. Ordinarily, OPR does not disclose who has already been interviewed or whom it plans to interview.
8. Assistance of Counsel
If the matter involves alleged illegality, the attorney alleged to have committed misconduct is entitled to have counsel present to assist him or her. In the majority of investigations, however, the allegations are administrative in nature, and employees are not entitled to counsel as a matter of law. However, counsel may be permitted if OPR is satisfied that counsel will not interfere with or delay the interview. Counsel must be actually retained by the employee as his or her legal representative, not attending informally or as an observer. Coworkers are not permitted to attend as observers.
9. Post-investigation Procedures
At the conclusion of the investigation, OPR makes findings of fact and reaches conclusions as to whether professional misconduct has occurred. OPR may find professional misconduct in two types of circumstances: (1) where an attorney intentionally violated an obligation or standard imposed by law, applicable rule of professional conduct, or Department regulation or policy, or (2) where an attorney acted in reckless disregard of his or her obligation to comply with that obligation or standard. OPR may also find that the attorney used poor judgment or made a mistake; such findings do not constitute findings of professional misconduct.
If OPR determines that no misconduct or poor judgment occurred, the attorney who was investigated, the complainant, and other appropriate parties are notified of that result.
If OPR determines that professional misconduct or poor judgment occurred, it prepares a report containing its findings and conclusions, and provides that report to the Deputy Attorney General as well as the appropriate Assistant Attorney General, the Director of EOUSA, or other appropriate component head. In addition, if OPR finds professional misconduct, it will also recommend an appropriate range of disciplinary actions for consideration by the attorney's supervisors (see further discussion below). In cases of poor judgment, the attorney’s supervisors may consider training, reassignment, or disciplinary action.
OPR may include in its report information relating to management and policy issues noted in the course of the investigation for consideration by Department officials.
Pursuant to OPR’s Routine Uses under the Privacy Act, OPR ordinarily notifies the complainant of the results of the investigation at the same time OPR provides its report of investigation to the relevant Department component.
10. Formal Disciplinary Action Based on OPR Findings
While OPR recommends an appropriate range of discipline in cases of professional misconduct, the decision whether to propose discipline and the nature of the action to be taken rests with the attorney's supervisors. Disciplinary actions against DOJ attorneys are governed by the DOJ Human Resources Order, chapter 1200, and include written reprimand, suspension, demotion, or removal. If a proposed disciplinary action is based on material included in an OPR report, that material must be disclosed to the attorney. Otherwise, the attorney involved in the allegation does not have a right to review the entire OPR report, which often contains confidential information regarding other employees or findings regarding management issues noted during the investigation.
11. Referral of Findings of Professional Misconduct to
Bar Disciplinary Authorities
In cases in which it finds professional misconduct (either intentional misconduct or conduct in reckless disregard of an applicable standard or obligation), OPR ordinarily advises bar disciplinary authorities in the jurisdiction where the attorney is licensed of its finding. Such a referral is not made if OPR determines that the matter involves purely federal or Department concerns and no bar disciplinary rule appears to be implicated. OPR’s investigative information may be disseminated to assist state bar disciplinary authorities to meet their responsibilities. 63 Fed. Reg. 68299 (12/10/98)
12. Public Disclosure of OPR Findings
OPR's findings in certain cases may be publicly disclosed. The Department may consider disclosing the final disposition, after all available administrative reviews have been completed, of any matter in the following categories:
If a matter appears to meet these criteria, OPR prepares a summary of the matter including the attorney's name, sufficient facts to explain the context of the allegation, and the final disposition. This summary is submitted to the Department's Office of Office of Privacy and Civil Liberties, which determines whether the Privacy Act permits disclosure of the included information and whether revisions should be made to the summary prior to disclosure. If Office of Privacy and Civil Liberties advises that the statement is appropriate for disclosure, the summary is sent to the attorney and the appropriate supervisory official, and both are given the opportunity to make written comments and objections to the proposed disclosure on grounds of privacy or law enforcement concerns. Any such objections are reviewed by Office of Privacy and Civil Liberties.
OPR forwards the proposed summary to the Deputy Attorney General with its recommendation regarding release and attaches all comments that were received. The final decision as to whether to release a summary is made by the Attorney General. If the Attorney General decides that disclosure is appropriate, the summary is forwarded to the Office of Public Affairs for release.
13. Routine Uses of OPR's Investigative Information
In addition to the internal uses by Department officials described above and disclosures to state bar disciplinary authorities, OPR information may be disseminated for the routine uses published in their entirety at 63 Fed. Reg. 68299 (12/10/98), and amended at 67 Fed. Reg. 70967 (11/27/02) and 69 Fed. Reg. 21160 (4/20/04). These uses include disclosures to other government agencies and officials for law enforcement purposes; to individuals or agencies in order to elicit information relevant to the investigation or another pending proceeding; in court, grand jury, regulatory or administrative proceedings; to other federal agencies when requested in connection with the hiring or retention of an employee, the issuance of a security clearance, or the reporting of an investigation of an employee; to complainants to the extent necessary to inform them of the progress or results of OPR’s review of their complaints; and to the subject of an investigation or inquiry conducted by OPR to further the investigation or inquiry, or to give notice of the status or outcome of the matter.
14. OPR Review of Proposals to Refer Non-DOJ Attorneys
to Bar Disciplinary Authorities
Any Department attorney who determines that unethical conduct by a non-Department attorney or judge should be reported to an appropriate disciplinary authority must consult with the U.S. Attorney, component head, or other designated supervisor, and may also consult with the Professional Responsibility Advisory Office (PRAO). If the U.S. Attorney’s Office or component recommends that a disciplinary referral be made, that recommendation and the relevant supporting information must be transmitted to OPR. OPR will decide whether the Department should consent to the disclosure of confidential information and a report to the bar will be made, or not, in accord with OPR’s determination.
1 OPR’s authority and jurisdiction derive from the Attorney General’s authority under 5 U.S.C. § 301, 28 U.S.C. §§ 509-510, 28 C.F.R. § 0.39, Attorney General Order 1931-94, and USAM § 1-4.100, et seq. For clarity, this outline describes OPR’s policies and procedures as they apply to Department attorneys. The same policies and procedures generally apply to investigators and law enforcement personnel.
2 See 5 U.S.C. Appendix 3, § 8E (b)(3).