Professional misconduct among attorneys poses a significant threat to the integrity of the legal system. To address this issue, the Department of Justice (DOJ) has established the Office of Professional Responsibility (OPR) to receive and investigate allegations of professional misconduct involving Department attorneys. This article delves into the reporting and investigation process of professional misconduct allegations, the standard of review employed by OPR, and the various findings that may result from an investigation.
Key Facts
- Reporting and Investigation:
- Allegations of professional misconduct can come from various sources, including U.S. Attorney’s offices, courts, Congress, media reports, other federal agencies, private citizens, and self-referrals.
- The Office of Professional Responsibility (OPR) is responsible for receiving and reviewing these allegations within the Department of Justice.
- OPR conducts its own searches to identify judicial findings of misconduct against Department attorneys.
- Initial review is conducted to determine whether further investigation is warranted based on the nature, specificity, and verifiability of the allegations.
- If an allegation warrants further review, OPR initiates an inquiry and may request additional information from the complainant, subject attorney, and other sources.
- In cases that cannot be resolved based on written records or involve serious allegations, OPR initiates a full investigation, which includes obtaining relevant documents, conducting witness interviews, and interviewing the subject attorney.
- Standard of Review:
- OPR makes professional misconduct findings based on a preponderance of evidence that the attorney intentionally violated or recklessly disregarded a clear and unambiguous legal obligation or professional standard.
- Violation of a clear and unambiguous legal obligation or standard is an essential element for a professional misconduct finding.
- Intentional conduct refers to purposeful or knowing actions that unambiguously violate the applicable obligation or standard.
- Conduct in reckless disregard of an obligation or standard occurs when the attorney knew or should have known about the obligation or standard, knew or should have known that their conduct would violate it, and engaged in objectively unreasonable conduct.
- Other Findings:
- In some cases, OPR may determine that the attorney’s conduct does not meet the elements for professional misconduct but warrants another finding, such as poor judgment or mistake.
- Poor judgment is determined when an attorney’s action or course of action contrasts with what the Department would reasonably expect from an attorney exercising good judgment.
- Mistake findings are based on excusable human error despite the attorney’s exercise of reasonable care under the circumstances.
Reporting and Investigation of Professional Misconduct Allegations
Allegations of professional misconduct can originate from various sources, including U.S. Attorney’s offices, courts, Congress, media reports, other federal agencies, private citizens, and self-referrals. Upon receiving an allegation, OPR conducts an initial review to determine whether further investigation is warranted. Factors considered during this review include the nature, specificity, and verifiability of the allegations.
If the initial review indicates the need for further action, OPR initiates an inquiry. During this phase, OPR may request additional information from the complainant, the subject attorney, and other relevant sources. If the inquiry resolves the matter, OPR closes the case. However, if the allegations are serious or cannot be resolved through the inquiry process, OPR proceeds with a full investigation.
The investigation involves obtaining relevant documents, conducting witness interviews, and interviewing the subject attorney. The goal is to gather evidence to support or refute the allegations of professional misconduct.
Standard of Review for Professional Misconduct Findings
OPR employs a preponderance of the evidence standard in making professional misconduct findings. This means that the evidence must establish that the attorney intentionally violated or recklessly disregarded a clear and unambiguous legal obligation or professional standard.
Intentional conduct refers to purposeful or knowing actions that unambiguously violate the applicable obligation or standard. Reckless conduct occurs when the attorney knew or should have known about the obligation or standard, knew or should have known that their conduct would violate it, and engaged in objectively unreasonable conduct.
Other Findings in Professional Misconduct Investigations
In some instances, OPR may determine that the attorney’s conduct does not meet the elements necessary for a professional misconduct finding but warrants another finding. These findings include poor judgment and mistake.
Poor judgment is determined when an attorney’s action or course of action contrasts with what the Department would reasonably expect from an attorney exercising good judgment. Mistake findings are based on excusable human error despite the attorney’s exercise of reasonable care under the circumstances.
Conclusion
The OPR plays a crucial role in upholding professional standards and ensuring the integrity of the legal profession within the Department of Justice. Through its thorough investigation process and application of the appropriate standard of review, OPR addresses allegations of professional misconduct and makes findings that guide disciplinary actions and promote ethical conduct among Department attorneys.
References
- U.S. Department of Justice, Office of Professional Responsibility: Professional Misconduct. https://www.justice.gov/opr/professional-misconduct
- American Bar Association, Model Rules of Professional Conduct, Rule 8.4: Misconduct. https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/
- U.S. Department of Justice, Office of Professional Responsibility: Frequently Asked Questions. https://www.justice.gov/opr/frequently-asked-questions
FAQs
How does the Office of Professional Responsibility (OPR) define professional misconduct?
OPR defines professional misconduct as a violation of a clear and unambiguous legal obligation or professional standard that is either intentional or results from the attorney’s reckless disregard of the obligation or standard.
What are the sources of professional misconduct allegations that OPR investigates?
OPR receives allegations from various sources, including U.S. Attorney’s offices, courts, Congress, media reports, other federal agencies, private citizens, and self-referrals.
What is the standard of review that OPR uses to make professional misconduct findings?
OPR employs a preponderance of the evidence standard, which requires that the evidence establishes that the attorney intentionally violated or recklessly disregarded a clear and unambiguous legal obligation or professional standard.
What are some examples of conduct that may be considered professional misconduct?
Examples of professional misconduct include knowingly making false statements to a court, engaging in conflicts of interest, neglecting client matters, and engaging in criminal conduct that reflects adversely on the attorney’s fitness to practice law.
What are the potential consequences of a finding of professional misconduct?
A finding of professional misconduct can lead to a range of disciplinary actions, including reprimand, suspension, or disbarment. The specific consequences depend on the severity of the misconduct and the attorney’s prior disciplinary history.
What is the process for reporting professional misconduct to OPR?
To report professional misconduct to OPR, individuals can submit a complaint in writing by mail or email. The complaint should include the complainant’s contact information, the name and title of the attorney alleged to have engaged in misconduct, the details of the allegation, and any supporting documentation.
How does OPR investigate allegations of professional misconduct?
OPR begins by conducting an initial review of the allegation to determine whether further investigation is warranted. If further investigation is necessary, OPR may request additional information from the complainant, the subject attorney, and other relevant sources. In serious cases, OPR may conduct a full investigation, which may include obtaining documents, conducting witness interviews, and interviewing the subject attorney.
What happens after OPR completes its investigation?
After completing its investigation, OPR issues a report of its findings. If OPR finds that professional misconduct occurred, it may refer the matter to the appropriate disciplinary authority for further action. OPR may also provide the complainant with information about the outcome of the investigation.