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United States Government Accountability Office: 
GAO: 

Report to Congressional Committees: 

December 2014: 

Professional Misconduct: 

DOJ Could Strengthen Procedures For Disciplining Its Attorneys: 

GAO-15-156: 

GAO Highlights: 

Highlights of GAO-15-156, a report to congressional committees. 

Why GAO Did This Study: 

Instances of professional misconduct—-such as a violation of an 
attorney's responsibilities to be honest-—among DOJ attorneys have 
called into question DOJ's efforts to oversee attorney behavior, 
including its processes for investigating and disciplining misconduct 
complaints. 

Congress mandated GAO to review DOJ's performance in disciplining 
attorneys. This report addresses (1) DOJ's processes to manage 
misconduct complaints; (2) how supervisors determine work 
responsibilities for attorneys accused of, or found to have engaged 
in, misconduct; and (3) DOJ's policies for paying for representation 
for attorneys investigated for misconduct. GAO reviewed DOJ regulatory 
obligations and policies, and legal representation costs from fiscal 
years 2008 through 2013. GAO also analyzed survey responses on 
assigning work responsibilities from 48 selected litigating sections. 
Responses are not generalizable, but provided helpful insights. GAO 
also interviewed DOJ officials who manage misconduct complaints. 

What GAO Found: 

The Department of Justice (DOJ) has made changes to improve its 
processes for managing complaints of attorney professional misconduct 
since 2011 but has not implemented plans to improve processes for 
demonstrating that discipline is implemented, or achieving timely and 
consistent discipline decisions. For example, GAO found that changes 
to the Office of Professional Responsibility's (OPR) processes for 
assessing the merits of misconduct complaints reduced assessment time 
that took up to 90 days in 2008 to about 7 days in 2014. However, GAO 
found that DOJ does not require its components to demonstrate that 
attorneys have served the discipline imposed on them for misconduct. 
Ensuring that discipline is implemented helps hold attorneys 
accountable for violating professional standards and provides the 
public reasonable assurance that misconduct is being addressed. DOJ 
also has not implemented a change called for in a January 2011 
memorandum from the Attorney General that would expand the purview of 
the Professional Misconduct Review Unit (PMRU)—the unit that proposes 
and decides discipline for attorneys with findings of misconduct by 
OPR. With this change, PMRU would go from deciding discipline for 
attorneys with professional misconduct findings in U.S. Attorneys' 
Offices (USAO) and the Criminal Division to all components. According 
to the Attorney General, this change could help reduce delays in 
implementing discipline and ensure consistent decisions about 
discipline. DOJ did not provide GAO with reasons for not making this 
change. 

DOJ policy provides that supervisors of attorneys accused of, or found 
to have engaged in, professional misconduct can use discretion to 
determine what work to assign to these attorneys. DOJ also provides 
agency-wide guidance to supervisors, such as administrative directives 
and the U.S. Attorneys' Manual, that identify steps supervisors may 
take when dealing with attorneys accused of misconduct. 
Representatives for 12 of the 20 USAOs and 20 of the 28 litigating 
sections we surveyed reported that supervisors assign work on a case-
by-case basis but consider factors, such as the nature of the alleged 
misconduct, in doing so. A smaller number of respondents reported that 
supervisors may assign work to such attorneys no differently than to 
other attorneys until the supervisors determine allegations have merit 
or professional misconduct is confirmed. 

Under departmental policy, DOJ is not to authorize legal 
representation for attorneys in OPR proceedings, including 
representation to assist such attorneys in preparing submissions to 
support their defense. However, DOJ attorneys, like all federal 
employees, may be provided legal representation by DOJ for carrying 
out their duties, under certain circumstances. For example, DOJ may 
provide representation for an attorney whose conduct is the subject of 
a state bar proceeding while the attorney is also the subject of an 
OPR investigation related to the same conduct. The representation 
would cover defense for the state bar but not the OPR proceeding. As a 
result, from fiscal years 2008 through 2013, DOJ expended $3.66 
million for private counsel representation for 38 DOJ attorneys 
involved in 18 legal proceedings where there were also related OPR 
investigations. DOJ found 12 attorneys within these investigations to 
have engaged in professional misconduct. 

What GAO Recommends: 

GAO recommends that DOJ (1) require components to demonstrate that 
they have implemented discipline for misconduct and (2) establish near-
term milestones for expanding PMRU's jurisdiction to decide discipline 
for all attorneys with findings of misconduct.DOJ agreed with GAO's 
recommendations. 

View [hyperlink, http://www.gao.gov/products/GAO-15-156]. For more 
information, contact Eileen Larence at (202) 512-8777 or 
mailto:larencee@gao.gov. 

[End of section] 

Contents: 

Letter: 

Background: 

DOJ Has Processes to Manage Complaints of Professional Misconduct, but 
Faces Challenges in Disciplining Attorneys3: 

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

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: 

Conclusions: 

Recommendations for Executive Action: 

Agency Comments and Our Evaluation: 

Appendix I: Objectives, Scope, and Methodology40: 

Appendix II: GAO Contact and Staff Acknowledgments: 

Figures: 

Figure 1: The Department of Justice's (DOJ) Process for Managing and 
Disciplining Professional Misconduct: 

Figure 2: The Office of Professional Responsibility (OPR) Time-Frames 
for Addressing Inquiries and Investigations Completed by OPR from 
Fiscal Years 2008 through 2013: 

Figure 3: Comparison of the Total Number of Complaints the Office of 
Professional Responsibility (OPR) Received and Rejected from Fiscal 
Years 2008 through 2013: 

Abbreviations: 

CSTL: Constitutional and Specialized Torts Litigation Section: 

DOJ: Department of Justice: 

EOUSA: Executive Office for United States Attorneys: 

MSPB: Merit Systems Protection Board: 

NDC: National Discovery Coordinator: 

OARM: Office of Attorney Recruitment and Management: 

OIG: Office of the Inspector General: 

OPM: Office of Personnel Management: 

OPR: Office of Professional Responsibility: 

PMRU: Professional Misconduct Review Unit: 

USAM: United States Attorneys' Manual: 

USAO: United States Attorneys' Offices: 

[End of section] 

United States Government Accountability Office: 
GAO:
441 G St. N.W. 
Washington, DC 20548: 

December 11, 2014: 

The Honorable Barbara A. Mikulski: 
Chairwoman: 
The Honorable Richard C. Shelby: 
Ranking Member: 
Subcommittee on Commerce, Justice, Science, and Related Agencies: 
Committee on Appropriations: 
United States Senate: 

The Honorable Frank Wolf: 
Chairman: 
The Honorable Chaka Fattah: 
Ranking Member: 
Subcommittee on Commerce, Justice, Science, and Related Agencies: 
Committee on Appropriations: 
House of Representatives: 

In 2009, the Attorney General moved to overturn the conviction of 
former senator Ted Stevens, who had been found guilty of seven felony 
counts of lying on Senate financial disclosure forms, upon finding 
that federal prosecutors had failed to disclose evidence that would 
have helped Senator Stevens to defend himself against false statement 
charges.[Footnote 1] And in September 2013, a Louisiana federal judge 
overturned the convictions and ordered a new trial for five New 
Orleans police officers alleged to have shot unarmed civilians during 
the aftermath of Hurricane Katrina, finding that federal prosecutors 
violated Department of Justice (DOJ) regulations and various Rules of 
Professional Responsibility.[Footnote 2] These and other high-profile 
instances of DOJ attorney professional misconduct raise questions 
about the behavior of attorneys within DOJ. Professional misconduct is 
a violation of an attorney's responsibilities to maintain honesty, 
trustworthiness, and fitness as a lawyer, and consists of actions that 
involve dishonesty, fraud, deceit, or misrepresentation resulting in 
the obstruction of the administration of justice.[Footnote 3] 

The manner in which DOJ attorneys exercise their responsibilities has 
far-reaching implications, in terms of the consequences for individual 
citizens and government law enforcement efforts. According to the U.S. 
Attorneys' Manual (USAM), the success of the federal prosecutorial 
system ultimately relies on the character, integrity, and competence 
of those attorneys who are selected to represent the public interest 
in the federal criminal justice process.[Footnote 4] DOJ attorneys are 
guided by a general statement of principles, outlined in the USAM, 
which summarizes appropriate considerations attorneys are to weigh and 
desirable practices they are to follow, in discharging their 
responsibilities. DOJ attorneys are also subject to rules of 
professional conduct in the states where the attorney practices and 
where the attorney is licensed to practice. When attorneys are 
suspected of violating these rules of professional conduct, or other 
professional obligations, the Office of Professional Responsibility 
(OPR) within DOJ is in charge of receiving, reviewing, and 
investigating complaints of attorney misconduct. The Professional 
Misconduct Review Unit (PMRU), which DOJ established in 2011, is 
responsible for proposing and deciding discipline for attorneys in 
U.S. Attorneys' Offices (USAO) and DOJ's Criminal Division found to 
have engaged in professional misconduct, in accordance with federal 
disciplinary regulations. 

In recent years, Members of Congress have raised questions about the 
independence and transparency of DOJ's process for investigating and 
disciplining professional misconduct of its attorneys. The explanatory 
statement accompanying DOJ's fiscal year 2013 appropriations act, 
which was passed into law in March 2013, mandated GAO to review the 
department's performance in disciplining prosecutors.[Footnote 5] This 
report addresses the following questions: 

1. To what extent does DOJ have processes to manage complaints of 
professional misconduct to discipline attorneys for findings of 
misconduct, and that advise on performance awards for these attorneys? 

2. How do supervisors determine work responsibilities for attorneys 
accused of, or who have been found to have engaged in, professional 
misconduct? 

3. What are DOJ's policies for paying or reimbursing the attorneys 
fees and costs of departmental employees in actions relating to 
allegations of contempt of court or prosecutorial misconduct, and what 
is the extent to which DOJ is paying for such costs? 

To address our first objective, we reviewed DOJ guidance related to 
establishing and overseeing attorney standards of conduct, including 
ethical conduct, such as outlined in the USAM and published 
regulations.[Footnote 6] We assessed agency-wide policies establishing 
DOJ's processes for identifying, investigating, and disciplining 
professional misconduct, including OPR's Analytical Framework--which 
provides guidance on the types of behavior identified as professional 
misconduct--and how OPR conducts investigations into misconduct. We 
compared OPR's process for supervisory review of professional 
misconduct complaints with internal control standards to ensure that 
OPR management provided oversight of the receipt, review, and 
investigation of misconduct complaints.[Footnote 7] We reviewed OPR 
complaint data from fiscal years 2008 through 2013 in order to 
describe what, if any, changes occurred in the number of complaints 
and the length of time to complete inquiries and investigations since 
DOJ's process for managing complaints of professional misconduct 
changed in 2011. We reviewed internal DOJ personnel and disciplinary 
documentation for all 40 cases for which OPR investigated attorneys 
for professional misconduct and for which PMRU was responsible for 
considering discipline from fiscal years 2011 through 2013, and 
compared DOJ's practices for documenting disciplinary actions with 
internal controls.[Footnote 8] We interviewed knowledgeable officials 
in OPR and PMRU, and selected DOJ components, such as the Criminal 
Division and the Executive Office for U.S. Attorneys (EOUSA), to 
obtain their views on how DOJ manages professional misconduct. 
[Footnote 9] We also 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. 

To address our second objective, we sent a questionnaire to 20 USAOs 
and 28 litigating sections within selected DOJ components to collect 
information on the various types of policies and procedures put in 
place to manage the work activities of attorneys accused of, or found 
to have engaged in, professional misconduct. We selected USAOs because 
EOUSA's General Counsel's Office stated that attorneys within these 
offices would be in the best position to discuss management of the 
work activities of attorneys alleged or found to have committed 
professional misconduct. We selected litigating sections to provide 
additional examples of how the department manages the work activities 
of attorneys alleged or found to have committed professional 
misconduct. To ensure that we obtained information across USAOs with 
varying workloads, we randomly selected 20 USAOs across all sizes 
using office case workload hours provided in the U.S. Attorneys' 2012 
Statistical Report.[Footnote 10] We selected litigating sections 
within DOJ components that have experience managing attorneys subject 
to a complaint of professional misconduct from fiscal years 2008 
through 2013.[Footnote 11] Using these criteria, we sent 
questionnaires to DOJ's Criminal Division, Civil Rights Division, Tax 
Division, Environment and Natural Resources Division, Antitrust 
Division, and Civil Division. Because we used a nongeneralizable 
sample, our findings cannot be used to make inferences about other 
USAOs or DOJ components. We received responses from all 20 USAOs and 
28 litigating sections. 

To address our final objective, we analyzed DOJ's policies for 
providing legal representation to federal employees.[Footnote 12] We 
assessed agency-wide policy guidelines, identifying the circumstances 
under which federal employees are eligible to receive representation 
by private counsel at DOJ's expense. We collected DOJ data from fiscal 
years 2008 through 2013 on (1) the number of cases in which DOJ 
approved legal representation for federal employees, and (2) the total 
amount DOJ expended for private counsel representation for federal 
employees. We assessed the reliability of both sets of these data by 
interviewing knowledgeable agency officials. We concluded that these 
data were sufficiently reliable for the purposes of this report. 

We conducted this performance audit from September 2013 to December 
2014 in accordance with generally accepted government auditing 
standards. Those standards require that we plan and perform the audit 
to obtain sufficient, appropriate evidence to provide a reasonable 
basis for our findings and conclusions based on our audit objectives. 
We believe that the evidence obtained provides a reasonable basis for 
our findings and conclusions based on our audit objectives. 

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.[Footnote 
13] 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.[Footnote 14] 

OPR receives and investigates complaints of professional misconduct 
for all department attorneys, including complaints that relate to 
attorneys' discovery obligations--their obligations to share 
information about witnesses and evidence relevant to the lawsuit. 
Discovery is a process that enables prosecutors and defense attorneys 
to know before the trial begins what evidence may be presented, and is 
designed to allow all parties to have the necessary information needed 
to effectively litigate a case.[Footnote 15] In addition to their 
discovery obligations, attorneys are subject to standards, rules, and 
obligations relating to their professional conduct from multiple 
authorities. Specifically, department attorneys are subject to 
obligations imposed by the U.S. Constitution and case law, federal 
laws, state bar and court rules of professional conduct, standards of 
conduct established by the USAM, and department regulations, policies, 
and procedures. Section 1-4.100 of the USAM requires DOJ attorneys to 
report to their supervisors any evidence or nonfrivolous allegation of 
misconduct that may be in violation of any law, rule, regulation, 
order, or applicable professional standard. The manual requires 
supervisors to 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.[Footnote 16] Figure 1 shows DOJ's process 
for managing and disciplining professional misconduct. 

Figure 1: The Department of Justice's (DOJ) Process for Managing and 
Disciplining Professional Misconduct: 

[Refer to PDF for image: process illustration] 

Receipt: 

Professional misconduct complaint received. 

Review: 

Does the complaint meet jurisdictional requirements? 
No: Reject complaint from further review; 
Yes: Continue. 

Does a complaint have potential merit? 
No: Reject complaint from further review; 
Yes: Continue. 

Inquiry: 
Did OPR find that an attorney engaged in misconduct? 
No: Close case; 
Yes: Continue. 

Investigate: 

Did OPR find that an attorney engaged in misconduct? 
No: Refer findings to component management; 
Yes: Continue. 

Discipline: 

Does PMRU agree with OPR findings of misconduct? (For USAO and 
Criminal Division attorneys): 
Yes: continue; 
No: Refer findings to component management. 

Does component management agree with OPR's findings? (For all other 
DOJ attorneys): 
Yes: continue; 
No: Management may ask the Office of the Deputy Attorney General for 
the authority to reject OPR's findings. 

Impose discipline: 

Does the attorney choose to grieve discipline? 
Yes: continue; 
No: Attorney serves discipline. 

Grieve: 

Attorneys within USAOs and the Criminal Division may grieve discipline 
decisions to the Deputy Attorney General or MSPB as appropriate. 

Attorneys within other DOJ components may grieve discipline decisions 
to a higher level official or the MSPB as appropriate. 

OPR: Office of Professional Responsibility; 
PMRU: Professional Misconduct Review Unit; 
USAO: United States Attorneys' Office; 
MSPB: Merit Systems Protection Board. 

Source: GAO analysis of DOJ's discipline process for attorneys accused 
of professional misconduct. GAO-15-156. 

Table note 1: OPR will refer findings of poor judgment to component 
management for discipline. PMRU will also refer its findings to 
component management if PMRU decides to reduce OPR's findings of 
misconduct to poor judgment. 

Table note 2: For attorneys within USAOs and the Criminal Division, 
PMRU is the proposing and deciding official for all disciplinary 
actions. For attorneys in other DOJ components, component management 
is both the proposing and deciding official for suspensions of 14 days 
or less. For suspensions of 15 days or more, removals, or demotions, 
component management is the proposing official and the Office of 
Attorney Recruitment and Management is the deciding official. For 
suspensions imposed for 15 days or more, demotions, and removals, all 
attorneys may appeal to the MSPB. 

[End of figure] 

* 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.[Footnote 17] For 
attorneys within USAOs and the Criminal Division, PMRU is the 
proposing and deciding disciplinary office.[Footnote 18] Because PMRU 
speaks 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.[Footnote 19] 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.[Footnote 20] 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 
publicly accountable for their actions. These long-standing concerns 
have prompted some Members of Congress to publicly 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.[Footnote 21] 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.[Footnote 22] 

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.[Footnote 23] The 
Attorney 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.[Footnote 24] 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. 
[Footnote 25] 

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.[Footnote 26] To help 
provide greater transparency of its investigations, OPR provides 
summaries of its findings in its Annual Reports.[Footnote 27] 

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 complete an investigation.[Footnote 28] Figure 2 shows a decrease 
in the average 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. 

Figure 2: The Office of Professional Responsibility (OPR) Time-Frames 
for Addressing Inquiries and Investigations Completed by OPR from 
Fiscal Years 2008 through 2013: 

[Refer to PDF for image: vertical bar graph] 

Fiscal year: 2008; 
Average time to complete an inquiry: 7 months. 

Fiscal year: 2009; 
Average time to complete an inquiry: 7 months. 

Fiscal year: 2010; 
Average time to complete an inquiry: 7 months. 

Fiscal year: 2011; 
Average time to complete an inquiry: 7 months. 
Average time to complete an investigation: 13 months. 

Fiscal year: 2012; 
Average time to complete an inquiry: 5 months. 
Average time to complete an investigation: 14 months. 

Fiscal year: 2013; 
Average time to complete an inquiry: 3 months. 
Average time to complete an investigation: 12 months. 

Source: GAO analysis of OPR data. GAO-15-156. 

Note: OPR provided data on the average time to complete an 
investigation for investigations initiated since October 1, 2010. 
Fiscal year 2011 was the year in which OPR modified its method for 
handling misconduct complaints. 

[End of figure] 

OPR Actions to More Efficiently Review Complaints of Misconduct: 

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 year.[Footnote 29] The Senior Associate Counsel 
described the process used to 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.[Footnote 30] 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.[Footnote 31] 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. 

Figure 3: Comparison of the Total Number of Complaints the Office of 
Professional Responsibility (OPR) Received and Rejected from Fiscal 
Years 2008 through 2013: 

[Refer to PDF for image: vertical bar graph] 

Fiscal year: 2008; 
Total complaints: 961; 
Complaints rejected: 744. 

Fiscal year: 2009; 
Total complaints: 1,254; 
Complaints rejected: 1,009. 

Fiscal year: 2010; 
Total complaints: 1,204; 
Complaints rejected: 1,021. 

Fiscal year: 2011; 
Total complaints: 1,381; 
Complaints rejected: 1,212. 

Fiscal year: 2012; 
Total complaints: 1,026; 
Complaints rejected: 903. 

Fiscal year: 2013; 
Total complaints: 819; 
Complaints rejected: 693. 

Source: GAO analysis of OPR data. GAO-15-156. 

[End of figure] 

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.[Footnote 32] 

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.[Footnote 33] 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.[Footnote 
34] OPR officials estimated that Westlaw searches at 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.[Footnote 35] DOJ also 
developed its Federal Criminal Discovery Blue Book--a comprehensive 
legal analysis and source of advice on criminal discovery practices--
to help attorneys better understand their discovery obligations. 
[Footnote 36] In addition, according to OPR's Deputy Counsel, DOJ 
requires that all litigators take 2 hours of professional 
responsibility training each year.[Footnote 37] 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.[Footnote 38] 

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.[Footnote 39] PMRU decided and imposed 
discipline for another 22 of the 40 attorneys (19 USAO attorneys and 3 
Criminal Division attorneys).[Footnote 40] 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.[Footnote 
41] 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.[Footnote 42] This official 
stated that EOUSA now 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. 

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. 
[Footnote 43] 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 DOJ OIG conducted a series of reviews assessing department 
components' disciplinary systems. Since 2004, and as recently as 
February 2014, the DOJ OIG reported on problems with components 
failing to implement discipline and maintain discipline records in 
employee personnel files.[Footnote 44] Among other things, the OIG 
routinely found that DOJ components lack documentation related to 
disciplinary actions and ensure that disciplinary decisions are 
imposed consistently. The most recent DOJ OIG report, which focused on 
EOUSA's disciplinary system, found that EOUSA was unable to determine 
whether discipline was implemented or evaluate disciplinary trends 
among USAOs because of lack of documentation.[Footnote 45] 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). 
[Footnote 46] In addition, DOJ's Associate 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. 

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.[Footnote 47] 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.[Footnote 48] 
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.[Footnote 49] According 
to DOJ, discretionary awards are of minimal value and an attorney's 
division management can approve these awards.[Footnote 50] 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 and $2,000.[Footnote 51] In addition, 2 
attorneys from USAOs received both a lump 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 for misconduct.[Footnote 
52] DOJ also provides guidance to supervisors on how to 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: [Footnote 
53] 

* 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.[Footnote 54] 
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.[Footnote 55] 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 administrative investigations.[Footnote 56] This 
policy also precludes legal 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. 

However, DOJ attorneys, like all federal employees, may receive legal 
representation under certain circumstances. According to a DOJ policy 
statement published in the Code of Federal Regulations,[Footnote 57] 
DOJ may provide counsel if a federal employee has been sued, 
subpoenaed, or individually charged--this means the employee could be 
personally liable for any judgment against the employee, such as 
having to pay a monetary award or sanction, or the employee otherwise 
faces personal exposure, such as the loss of a license to practice 
law.[Footnote 58] To be eligible for representation, requests for 
representation must involve conduct that reasonably appears to have 
been performed within the scope of that person's federal employment. 
In addition, providing representation must be "in the interest of the 
United States."[Footnote 59] According to DOJ, if an 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 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 investigations are relatively common in high-profile matters. 
[Footnote 60] In addition, 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.[Footnote 61] 
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.[Footnote 62] 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.[Footnote 63] 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.[Footnote 64] 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. 
[Footnote 65] 

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.[Footnote 66] 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.[Footnote 67] 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.[Footnote 68] After a hearing, the district court 
found that 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 [hyperlink, 
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. 

Signed by: 

Eileen R. Larence: 
Director, Homeland Security and Justice: 

[End of section] 

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.[Footnote 69] We also reviewed previous 
GAO[Footnote 70] and DOJ Inspector General[Footnote 71] 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.[Footnote 72] 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.[Footnote 73] 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.[Footnote 74] Using these criteria, we sent questionnaires 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. 

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 publicly 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. 

[End of section] 

Appendix II: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

Eileen R. Larence, (202) 512-8777 or larencee@gao.gov: 

Staff Acknowledgments: 

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.
[End of section] 

Footnotes: 

[1] United States v. Stevens, No. 08-0321, (D.D.C. Apr. 1, 2009), ECF 
No. 324. 

[2] United States v. Bowen, 969 F. Supp. 2d. 546, 549-50, 624-25 (E.D. 
La. 2013) (finding that prosecutors acting with anonymity used social 
media to circumvent ethical obligations and professional 
responsibility, and even to commit violations of the Code of Federal 
Regulations). 

[3] According to DOJ officials, DOJ 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 in the 
exercise of their authority to investigate, litigate, or provide legal 
advice. According to DOJ officials, prosecutors are more likely to 
face allegations of professional misconduct than other types of 
attorneys because prosecutors compose a large percentage of DOJ 
attorneys and they handle a large volume of cases and allegations of 
professional misconduct are more likely to arise in the context of 
federal criminal prosecutions than in other matters DOJ handles. 

[4] The United States Attorneys' Manual is designed as a reference for 
United States Attorneys, Assistant United States Attorneys, and 
department attorneys responsible for the prosecution of violations of 
federal law. The manual contains general policies and some procedures 
relevant to the work of the United States Attorneys' Offices and to 
their relations with the legal divisions, investigative agencies, and 
other components within the Department of Justice. 

[5] The explanatory statement, which accompanied the Consolidated and 
Further Continuing Appropriations Act, 2013, Pub. L. No. 113-6, 127 
Stat. 198, incorporated by reference S. Rep. No. 112-158 (2012). 

[6] See 28 C.F.R. pts. 45, 77. Also see U.S. Attorneys' Manual, 
Standards of Conduct, 1-4.000, Personnel Management, 3-4.000, 
Principles of Federal Prosecution, 9-27.000. 

[7] GAO, Standards for Internal Control in the Federal Government, 
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1] 
(Washington, D.C.: November 1999). 

[8] PMRU decided and imposed discipline for 22 of the attorneys that 
OPR investigated for professional misconduct. The remaining 16 
attorneys resigned or retired either before PMRU reviewed their case 
or made a disciplinary determination. 

[9] The Criminal Division develops, enforces, and supervises the 
application of all federal criminal laws except those specifically 
assigned to other divisions. The Executive Office for U.S. Attorneys 
provides administrative support for the 93 United States Attorneys. 
PMRU proposes and decides discipline only for attorneys within these 
components. 

[10] We used the 2012 report because it contained the most recent data 
available at the time of our sample selection. 

[11] We selected only those divisions within DOJ that had an attorney 
who was charged with the intentional or reckless violation of a clear 
and unambiguous standard of conduct, rule, statute, or law from fiscal 
years 2008 through 2013. Even though OPR can investigate law 
enforcement officials for their role in assisting attorneys with 
investigating, we did not include DOJ's law enforcement divisions 
within our sample. 

[12] DOJ's published statement of policy for individual capacity 
representation is found at 28.C.F.R. §§ 50.15-16. 

[13] This includes allegations relating to the actions of the 
department's immigration judges and Board of Immigration Appeals 
members. OPR also has jurisdiction to investigate allegations of 
misconduct against DOJ law enforcement personnel that are related to 
allegations of attorney misconduct within the jurisdiction of OPR. 

[14] See 28 C.F.R. § 0.39. 

[15] 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. 

[16] MSPB is an independent, quasijudicial agency in the executive 
branch that hears and decides appeals for many kinds of actions 
federal agencies may take against the employees who work for these 
agencies. 

[17] OARM is responsible for DOJ's recruitment efforts for law 
students and DOJ attorneys. OARM also has delegated authority to take 
final action in matters pertaining to the employment, separation and 
general administration of DOJ attorneys and law students in grades GS-
15 (or equivalent) and below. 

[18] According to Office of Personnel Management (OPM) definitions, a 
proposing official is a management official who has the delegated 
authority to issue a notice of proposed adverse action. A deciding 
official is a management official designated to make the final 
decision in connection with a proposed adverse action. According to 
DOJ, the deciding official has the authority to hear the subject's 
oral response to a proposed action. 

[19] Under OPR's Analytical Framework, an attorney exercises poor 
judgment when faced with alternative courses of action, that person 
chooses a course of action that is in marked contrast to the action 
that the department may reasonably expect an attorney exercising good 
judgment to take. Poor judgment differs from professional misconduct 
in that an attorney may act inappropriately and thus exhibit poor 
judgment even though that person may not have violated, or acted in 
reckless disregard of, a clear obligation or standard. A mistake 
results from excusable human error despite an attorney's exercise of 
reasonable care under the circumstances. 

[20] See 5 U.S.C. § 552a. According to DOJ, it may not share 
information on OPR investigations or disciplinary action taken against 
an attorney except under exceptions to the Privacy Act, including 
disclosures to Congress and routine use exceptions, such as for bar 
disciplinary action or in response to a written request by a judicial 
officer to where it is relevant to the judicial office or the court. 

[21] Section 8E of the Inspector General Act of 1978, as amended, 
requires that OIG refer to OPR allegations of misconduct involving 
department attorneys, investigators, or law enforcement personnel, 
where the allegations relate to the exercise of the authority of an 
attorney to investigate, litigate, or provide legal advice. According 
to DOJ OIG's Chief of Staff/Senior Counsel, OIG has not been requested 
to conduct a review over OPR's processes for investigating 
professional misconduct. 

[22] In addition, 28 C.F.R. § 0.29e(a)(6) provides a formal mechanism 
allowing the Inspector General to request that the Deputy Attorney 
General authorize OIG to handle particular professional misconduct 
investigations within the jurisdiction of OPR. The Deputy Attorney 
must approve OIG's request before the OIG can investigate professional 
misconduct. 

[23] E.g., S. 2127, 113th Cong. (2014); H.R. 3847, 111th Cong. (2009); 
S. 2324, 110th Cong. (2007); H.R. 9238, 110th Cong. (2007). 

[24] Hearing of the House Judiciary Committee Subject: "Oversight of 
the U.S. Department of Justice" Chaired by: Representative Robert 
Goodlatte (R-VA) Witness: Attorney General Eric Holder Location: 2141 
Rayburn House Office Building, Washington, D.C. Time: 10: 04 a.m. EDT 
Date: Tuesday, April 8, 2014. 

[25] B-256322, Apr. 15, 1994. 

[26] See 5 U.S.C. § 552a; Privacy Act of 1974; System of Records, 76 
Fed. Reg. 66752-54 (Oct. 27, 2011). 

[27] OPR's Annual Reports provide information to the public on the 
number of misconduct complaints received and the number of inquiries 
and investigations in a given fiscal year. The reports also provide 
summary-level information on OPR's findings of misconduct. 

[28] According to OPR's Deputy Counsel, some of the complaints OPR 
receives take longer to resolve than others for a variety of reasons. 
For example, OPR sometimes must put on hold complaints that are part 
of judicial proceedings or appellate reviews until the proceedings are 
resolved, depending on a number of factors. In addition, if OPR does 
not have sufficient information regarding the complaint, or the more 
factually complicated a complaint is, the longer it will take OPR to 
resolve. Because OPR permits attorneys to review a draft report when 
OPR finds misconduct they can delay issuing a final report. Further, 
OPR cannot compel third parties, such as judges, defense attorneys, 
and non-DOJ witnesses, to participate in an OPR review or provide 
pertinent information, which, according to OPR, can make it difficult 
for OPR to investigate a complaint in a timely manner. 

[29] The Senior Associate Counsel and his staff document all decisions 
to reject, close, or accept a complaint through OPR's case management 
system, called Law Manager. 

[30] Although these matters fall outside of OPR's jurisdiction--which 
is to investigate allegations of misconduct involving Department 
attorneys that relate to the exercise of their authority to 
investigate, litigate or provide legal advice--according to OPR's 
Deputy Counsel, where appropriate, OPR refers these matters to DOJ 
components, including the OIG, so that they may properly exercise 
jurisdiction. 

[31] GAO did not assess DOJ's use of professional judgment in 
determining which complaints to reject from further review. 

[32] According to OPR's Deputy Counsel, OPR regularly reports to the 
Attorney General and Deputy Attorney General on the findings of 
professional misconduct investigations, in part, to provide statistics 
on OPR's caseload. OPR also maintains reports--including a quarterly 
report for the department senior management--documenting the status of 
findings in resolving complaints, among other things. 

[33] A judicial opinion is a court's written statement explaining its 
decision in a given case. To ensure that OPR identifies the subject of 
a judicial opinion when the opinion does not explicitly name the 
attorney, OPR's Deputy Counsel reported that OPR will examine court 
documents and that OPR can typically identify the attorney in question 
through an examination of the docket sheets. The Deputy Counsel also 
stated that if OPR cannot identify the attorney in question, OPR will 
send a letter to the USAO or head of the component involved requesting 
responses to specific questions about the case. 

[34] According to OPR's Deputy Counsel, OPR conducts its Westlaw 
database searches using a list of broad search terms related to 
misconduct to identify judicial opinions where DOJ attorneys may have 
engaged in misconduct. Westlaw searches identify approximately 100 to 
150 potential cases using the broad search terms; after review of 
these potential instances, a few every 2 weeks are deemed to warrant 
further OPR review. 

[35] 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. 

[36] According to DOJ, the Blue Book was designed to provide advice 
regarding the law and practice of federal prosecutors' discovery 
disclosure obligations and to serve as a litigation manual by all DOJ 
prosecutors and paralegals. 

[37] Litigators meet their professional responsibility training 
requirements in one of several ways, including, among other things, 
attending trainings held by NDC; watching training videos developed by 
DOJ's learning center and the NDC; or identifying training that will 
be approved by the NDC and their office's criminal discovery 
coordinator. The NDC consistently works with EOUSA's Office of Legal 
Education to develop new discovery trainings. 

[38] The Professional Responsibility Advisory Office has the 
responsibility for providing advice to government attorneys and the 
leadership within the department on issues relating to professional 
responsibility and ethics. 

[39] Record retention requirements generally mandate that employees' 
personnel files be transferred to the National Personnel Records 
Center within 90 days of their separation which could include 
resignation or retirement. According to Office of Personnel Management 
guidance, when employees separate from the federal government, 
employees' Official Personnel Folders are generally transferred to the 
National Personnel Records Center within 90 days of separation and are 
maintained for 65 years. We considered a copy of the Standard Form 50--
which documents personnel actions, such as separation from the federal 
government--or resignation letter to be sufficient documentation 
showing that an attorney resigned or retired. 

[40] For the 19 attorneys within USAOs disciplined for misconduct by 
PMRU, 15 received suspensions of a day or more, 2 received letters of 
admonishment, and 2 received written reprimands. For attorneys within 
the Criminal Division, 3 received suspensions of a day or more. In one 
of these cases, the DOJ attorney grieved a 3-day suspension and the 
Office of the Deputy Attorney General vacated the discipline decision, 
determining that the conduct at issue constituted poor judgment rather 
than reckless misconduct. 

[41] An official from EOUSA reported that EOUSA uncovered this 
situation at the same time the Division was also in the process of 
establishing its new procedures for documenting that discipline was 
implemented. This official stated that he did not anticipate that 
EOUSA would be unsuccessful in implementing discipline in the future. 

[42] Department of Justice, Office of the Inspector General, 
Evaluations and Inspections Division, USAOs' and EOUSA's Disciplinary 
Process, I-2014-001 (Washington, D.C.: February 2014). 

[43] 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. 

[44] Department of Justice, Office of the Inspector General, 
Evaluations and Inspections Division, Review of the Federal Bureau of 
Investigation's Disciplinary System, I-2009-002 (Washington, D.C.: May 
2009); Review of the Drug Enforcement Administration's Disciplinary 
System, I-2004-002 (Washington, D.C.: January 2004); and Review of the 
Bureau of Alcohol, Tobacco, Firearms and Explosives' Disciplinary 
System, I-2005-009 (Washington, D.C.: September 2009). 

[45] Department of Justice, Office of the Inspector General, 
Evaluations and Inspections Division, Review of the USAOs' and EOUSA's 
Disciplinary Process, I-2014-001 (Washington, D.C.: February 2014). 

[46] Title 5, United States Code, Chapter 75 establishes the legal 
framework for federal agencies to address employee misconduct. 

[47] [hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1]. 

[48] Project Management Institute, A Guide to the Project Management 
Body of Knowledge (PMBOK® Guide), Fifth Edition, (Newtown Square, Pa: 
2013). 

[49] If we do not count the number of attorneys that resigned or 
retired before PMRU decided discipline, the percentage of attorneys 
receiving performance awards would be 38 percent (9 of 24). 

[50] Examples of discretionary awards include lump-sum cash award, 
honorary award, informal recognition award, and a time-off award. 

[51] According to the Office of Personnel Management, a time-off award 
is time off from duty, without loss of pay or charge to leave, granted 
to a Federal employee as a form of incentive or recognition; and a 
lump sum cash award is a performance-based cash award, also commonly 
known as a rating-based award, and is based on the most recent 
performance rating. 

[52] See DOJ Human Resource Order 1200.1. Our review of DOJ's Human 
Resource Order 1200.1 found that DOJ affords managers the authority to 
remove or reassign attorneys to different case assignments based on 
their assessed risk of whether an attorney's actions pose a threat to 
the order of the office or whether the attorney's presence in the 
office would negatively affect their efforts to effectively administer 
justice. 

[53] Respondents often cited more than one factor in the bullets below 
so the numbers will not add to 20 USAOs or 28 litigating sections. 

[54] Because GAO did not review the individual cases of professional 
misconduct, we did not evaluate whether management's judgments when 
reaching such conclusions were appropriate. 

[55] The remaining 2 litigating sections did not provide information 
on factors they used to ensure supervisors are providing adequate 
oversight of their attorneys who have been accused of or have been 
found to have engaged in misconduct. 

[56] In addition, representation generally is not available in federal 
criminal proceedings, and employees may never receive representation 
in instances in which DOJ has sought an indictment or filed 
information against the employee. 28 C.F.R. §§ 50.15(a)(4), (7), 
50.16(c)(2)(i). Representation may be available in proceedings 
unrelated to the indictment or information, as appropriate. See §§ 
50.15(a)(7), 50.16(c)(2)(i). An indictment or information is the 
formal charge made by a prosecutor to initiate a criminal proceeding 
against the accused. 

[57] 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. 

[58] In an "official capacity" suit, the defendant employee is named, 
but the real defendant is the United States and any adverse judgment 
would be directed to the actions or resources of the United States. In 
those cases, DOJ defends the matter just as it does other cases 
against the United States and the federal employee does not need a 
separate attorney because there is no risk of personal liability. 

[59] Other factors that may be considered include whether the 
employee's actions were in accordance with agency policy, whether the 
employee has given a truthful account of events, and whether the 
employing agency has disciplined the employee for the conduct giving 
rise to the suit. 

[60] Federal employees submit requests for legal representation 
through the employee's federal agency to the Civil Division, or other 
appropriate litigation division. 28 C.F.R. § 50.15(a)(1). Litigating 
divisions must consult with the Civil Division before approving 
private counsel representation. § 50.16(b). 

[61] A matter may include multiple federal employees. 

[62] DOJ may provide private counsel at DOJ expense as opposed to 
direct representation in certain circumstances, including where there 
is a federal criminal proceeding; where conflicts exist between the 
legal and factual positions of various employees in the same case 
which make it inappropriate for a single attorney to represent them 
all; or where representation of the employee could involve the 
assertion of a position that conflicts with the interests of the 
United States. In addition, DOJ's practice has been to provide 
retroactive reimbursement for private counsel representation in 
situations where DOJ determines that the employee has made a timely 
and otherwise appropriate request for representation and was acting 
within the scope of the person's employment, but there is insufficient 
time due to the nature and/or timing of the proceeding to consider 
whether representation is in the interest of the United States. In 
these cases, once DOJ makes its determination on representation, DOJ 
may authorize continued private counsel representation or direct DOJ 
representation. We did not identify any instances where DOJ 
representation provided in a federal criminal proceeding. 

[63] Three matters amounted for more than $2.7 million of the $3.66 
million total. CSTL identified one additional case where funds 
obligated in fiscal year 2009 were paid to private counsel for one 
employee. However, according to CSTL officials, the vast majority of 
the costs incurred in connection with this case for multiple other 
employees were paid prior to fiscal year 2008, and all related OPR 
investigations were issued by January 2005. Therefore, we have 
excluded this case from our analysis. We also identified an additional 
6 attorneys in these matters for whom DOJ approved representation by 
private counsel; however, no funds were expended for their 
representation. 

[64] DOJ employees include attorneys and employees from all of its 
components, including the Bureau of Prisons, and law enforcement 
agencies, such as the Federal Bureau of Investigation, among others. 

[65] These 12 attorneys that PMRU or OPR, as applicable, found to have 
engaged in professional misconduct may or may not have received 
private counsel representation from DOJ. To ensure the confidentiality 
of those under investigation, GAO did not collect the names of the 
attorneys receiving legal representation or who were the subject of 
the related OPR investigations. 

[66] A superseding indictment replaces a prior indictment. The purpose 
of the superseding indictment may be, for example, to correct 
technical errors, such as dates or names, or to add new charges and 
defendants. 

[67] There were also related bar proceedings related to this conduct. 

[68] An order to show cause is an order directing a party to appear in 
court and explain why the party took (or failed to take) some action 
or why the court should or should not grant some relief. 

[69] See 28 C.F.R. pts. 45, 77. Also see U.S. Attorneys' Manual, 
Standards of Conduct, 1-4.000, Personnel Management, 3-4.000, 
Principles of Federal Prosecution, 9-27.000. 

[70] GAO, Follow-up Information on the Operations of the Department of 
Justice's Office of Professional Responsibility, [hyperlink, 
http://www.gao.gov/products/GAO-135-01R] (Washington, D.C.: Jan. 19, 
2001); Information on the Office of Professional Responsibility's 
Operations, [hyperlink, http://www.gao.gov/products/GAO/GGD-00-187] 
(Washington, D.C.: Aug. 14, 2000); Employee Misconduct: Justice Should 
Clearly Document Investigative Actions, [hyperlink, 
http://www.gao.gov/products/GAO/GGD-92-31] (Washington, D.C.: Feb. 7, 
1992); and B-256322, Apr. 15, 1994. 

[71] DOJ Office of the Inspector General, Evaluations and Inspections 
Division, Review of the Federal Bureau of Investigation's Disciplinary 
System, I-2009-002 (Washington, D.C.: May 2009); Review of the Drug 
Enforcement Administration's Disciplinary System, I-2004-002 
(Washington, D.C.: January 2004); Review of the Bureau of Alcohol, 
Tobacco, Firearms and Explosives' Disciplinary System, I-2005-009 
(Washington, D.C.: September 2009); and Review of the USAO's and 
EOUSA's Disciplinary Process,I-2014-001 (Washington, D.C.: February 
2014). 

[72] GAO, Standards for Internal Control in the Federal Government, 
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1] 
(Washington, D.C.: November 1999). 

[73] We used the 2012 report because it was the only report publicly 
available at the time of our sample selection. 

[74] We selected only those divisions within DOJ that had an attorney 
who was charged with the intentional or reckless violation of a clear 
and unambiguous standard of conduct, rule, statute, or law from fiscal 
years 2008 through 2013. Even though OPR can investigate law 
enforcement officials for their role in assisting attorneys with 
investigating, we did not include DOJ's law enforcement divisions 
within our sample. 

[End of section] 

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