New OPR Chief Predicts More Transparency in Attorney Investigations

Source: The BLT: The Blog of The Legal Times
Joe Palazzolo and Mike Scarcella
May 6, 2009

The new chief of the Justice Department's Office of Professional Responsibility said Tuesday she expected greater transparency in investigations of attorney misconduct and a more open discovery process in criminal cases.

Mary Patrice Brown, in her first public remarks since assuming command last month, predicted more of the office's reports would be released to the public. The office will make judgments about disclosure on a case-by-case basis, depending on the severity of the misconduct, its pervasiveness, and the public attention it garners, she said. Brown said across-the-board releases would not be in the interest of the department, noting that part of the OPR's mission is to protect lawyers against frivolous complaints.

“I think you’re going to be seeing a lot more transparency in the OPR investigations,” said Brown, a 20-year veteran of the U.S Attorney’s Office for the District of Columbia, who most recently served as criminal chief. “The Office of Inspector General publishes reports. The Office of Professional Responsibility traditionally has not. But I predict that you’ll be seeing a little bit more transparency about that.”

Her remarks, at a disciplinary conference at the Mayflower Hotel, echoed comments by Attorney General Eric Holder Jr. to a group of federal judges last month. At the meeting, Holder encouraged judges to contact him directly with concerns about professional misconduct.

The OPR has been an object of scrutiny in recent months, as lawmakers and advocacy groups have pushed for the release of a report on the conduct of former Bush administration lawyers who authored controversial legal opinions sanctioning the use of harsh interrogation methods and endorsing a broad view of the president's wartime powers.

Federal judges have also taken aim at the office. In April, U.S. District Judge Emmet Sullivan appointed an outside lawyer to investigate the six prosecutors involved in prosecution of former Alaska Sen. Ted Stevens, whose conviction was vacated last month at Holder's behest. The attorney general concluded the case was irreparably damaged by discovery errors, and the OPR has been investigating the prosecutors since October.

At the April 7 hearing on the government’s motion to dismiss the Stevens case, Sullivan cited the pace of the OPR investigation as one of his reasons for ordering the criminal contempt probe. He also implicitly questioned the office's independence. Brown was appointed the next day, replacing H. Marshall Jarrett, whom Holder elevated to head the Executive Office for U.S. Attorneys.

Brown avoided mention of the Stevens case by name and declined to discuss the investigations when asked about them by a member of the audience. But in explaining the various avenues through which complaints reach the OPR, she said, “Some of you may have heard that occasionally a judge gets a little upset and refers things to OPR or decides to take matters into his or her own hands, creating a special type of OPR."

Brown described the OPR as a “cleanup crew” assigned to probe for professional misconduct and weed out frivolous claims. “But sometimes, sadly, we uncover criminal conduct,” she said. Typically, the office refers such findings to department’s Public Integrity Section.

Brown noted three types of prosecutors who typically get into trouble: the over-zealous prosecutor, the under-zealous prosecutor, and the uniformed prosecutor. The OPR gets about 1,000 complaints a year, Brown said, and the bulk of them deal with alleged misrepresentations to court or to opposing counsel. On the next rung down, she said, are complaints related to lawyers’ failure to comply with DOJ regulations. Toward the bottom are discovery violations, she said, though they have attracted the most attention of late. Holder announced recently that department lawyers would receive additional training to reinforce their understanding of rules that govern discovery in criminal and civil cases.

“If your gut is telling you you do not want the defense to have this, then that tells you you must turn it over. That’s how we were trained. People who don’t do that, and hold things too close to the chest, those are the people who run into trouble,” Brown said. “In a white-collar case, the way I was trained, was for heaven’s sakes, turn it all over. What are you hiding? It’s easier that way.”

Brown also said she expects a more open discovery process, but stopped short of endorsing so-called “open file discovery,” where defense attorneys get everything. She predicted prosecutors would step up the practice of turning over disks containing “documents outlined and formatted for you so that defense attorneys can understand it.”

Mayer Brown partner Anthony Alexis, former deputy chief of the Major Crimes Section in the U.S. Attorney’s Office for the District of Columbia, says Brown’s remarks are not surprising. As a supervisor in the U.S. attorney’s office, she preached that in white-collar cases there should be an emphasis on turning over documents to the defense absent a compelling reason not to do so. “And the compelling reason is not that it hurts your case but that it hurts an individual,” says Alexis, whose practice focuses on white-collar defense and compliance. “I breathe a sigh of relief that there is a watchdog who understands it and who has been taught well herself and who will continue to teach well.”

Often lawyers cite Perry Mason as their raison d'être for entering the legal profession. Brown said she found inspiration in one the darkest chapter's in the nation's history.

“Sadly, I came home from school everyday and watched the Watergate hearings,” Brown said. “I wanted to do right and be like those, you know, crusading people on the Senate and House judiciary committees. So I think it’s kind of a nice circle for me to come back to a place that was started in 1975 really in response to what was going on in Watergate.”