July 2006

Topic:
Federal agencies have the authority to refer the conduct of an agency lawyer to Bar Counsel even when that agency does not believe the lawyer’s conduct was an intentional or reckless violation or professional standards.

Jesselyn A. Radack v. United States Department of Justice, 2006 WL 2024978 (July 17, 2006 D.D.C.). For more than six years, Jesselyn Radack worked at the United States Department of Justice, her final three years spent as a legal advisor in the Professional Responsibility Advisory Office. PRAO provides professional responsibility and ethics advice to DOJ attorneys. While so employed, she advised a DOJ attorney about the “ethical propriety of a proposed FBI interview” of John Walker Lindh, the American Taliban. After discussing the Lindh matter with PRAO's senior legal advisor, Radack concluded that the proposed interview would be a pre-indictment and custodial overt interview that was not authorized by law. Soon thereafter, she learned that, despite her advice, the FBI had interviewed Lindh anyway. Radack immediately told her supervisor, Claudia Flynn, that PRAO's advice had been ignored. Flynn responded by saying, “PRAO's involvement in the matter was over.” In early 2002, federal criminal charges were lodged against Lindh. In response to a discovery request from Lindh's attorney, the United States Attorney's Office sought all communications concerning PRAO's assistance in the Lindh matter. After an exhaustive search, Radack provided all responsive e-mails to her supervisor to be delivered to the prosecutors handling the criminal proceedings. Radack eventually came to believe that the e-mails she collected were not produced in their entirety. Radack, however, was unaware that a number of the e-mails that she suspected were withheld were in fact submitted to the Lindh Court, ex parte and under seal, for an in camera inspection in connection with the government's motion for a protective order. On April 1, 2002, the Lindh Court granted the government's motion for a protective order and prohibited disclosure of the PRAO e-mails. Four days later, Radack resigned from government service and began working at a law firm. Later, she heard a National Public Radio broadcast wherein DOJ claimed it “never” took the position that Lindh was entitled to counsel while in custody in Afghanistan. The broadcast led Radack to believe that her e-mails had not been produced to the United States Attorney's Office or the Lindh Court “because [she] did not believe the Department would have the temerity to make public statements contradicted by its own court filings.” Still unaware that the e-mails had been turned over and were subject to a protective order, Radack disclosed her e-mails to Newsweek magazine, where they appeared in an online edition. Thereafter, certain media outlets began portraying Radack as a whistleblower who had endeavored to expose governmental wrongdoing. See e.g., “The Trials of Jesselyn Radack”, The American Lawyer (July 14, 2003). The government took a differing view. On June 19, 2002, the Lindh Court instructed the government to address whether an individual covered by the protective order disclosed the e-mails. The Office of the Inspector General subsequently initiated an investigation and concluded that it was Radack who had disclosed the e-mails and a report was filed with the Lindh Court identifying Radack as the Newsweek source. The government instituted a criminal investigation into the disclosure and, as a result of that investigation, Radack allegedly lost her job with her Washington D.C. law firm. On September 11, 2003, DOJ informed Radack that it had closed its criminal investigation without seeking an indictment. In addition, the Lindh Court determined that Radack's disclosure did not technically violate the protective order. Subsequently, however, the Office of Professional Responsibility, the ethics enforcement authority in DOJ, sent letters to the District of Columbia and Maryland bar authorities indicating that Radack “may have violated her duty not to knowingly reveal attorney-client privileged information” by disclosing the e-mails to Newsweek . The Attorney Grievance Commission of Maryland dismissed the referral against Radack in 2005, but the District of Columbia bar investigation is, according to the opinion, still pending. Radack sued the DOJ in federal court, alleging that the DOJ's Office of Professional Responsibility violated federal law when it referred allegations of her alleged professional misconduct to bar disciplinary authorities. She sought injunctive declaratory relief, money damages and reimbursement of her attorney's fees. She alleged that she had sustained injury in the form of a damaged reputation and reduced employment prospects by virtue of the reporting. Her request for injunctive relief was dismissed for lack of subject matter jurisdiction and DOJ moved to deny all remaining relief, arguing that dismissal was warranted for a variety of other reasons, among them, that Radack lacked Article III standing to bring suit. The court, however, concluded that Radack had established an injury-in-fact, causation, and redressability, and thus had Article III standing to seek declaratory relief and attorney's fees. Nevertheless, because the decision to send referral letters to the Maryland and D.C. bars did not violate DOJ’s administrative guidelines concerning when bar referrals are permissible, summary judgment was appropriate. Radack essentially argued that a federal agency cannot refer the conduct of an agency attorney to bar counsel unless that agency first concludes that the target lawyer’s actions were intentional or reckless. She directed the court's attention to two documents. One, an August 2000 report from the General Accounting Office, stated that “after completing its investigation, if OPR substantiates that a Justice attorney committed intentional misconduct, its policy is to notify the state bar(s) of which the attorney is a member of these findings.” The other, the DOJ OPR 2000 Annual Report, described a letter from DOJ to Congress by saying that the letter announced DOJ's adoption of “a revised notification policy, requiring notification of the relevant state bar disciplinary authorities whenever OPR concludes, and the Department affirms, that a Department attorney engaged in professional misconduct, whether through intentional action or through the reckless disregard or a professional standard or obligation.” She insisted that, because none of these criteria was met in her case, OPR “violated its own policy,” thereby acting in a manner that was “arbitrary, capricious, an abuse of discretion and otherwise not in accordance with law.” The Court found her argument unpersuasive and held:

Nothing in the texts of the reports suggests that they provide an exhaustive or exclusive list of the circumstances under which OPR is permitted to refer attorneys to bar authorities. The language and context of the actual letter to Congress (as opposed to the subsequent synopsis that Radack quotes) make this even clearer. In response to a Congressional inquiry that asks, in part, why OPR does not refer more cases to bar authorities, OPR reviews its existing policy on referrals by stating that “a broad range of misconduct is reported to state bars by OPR” and that “OPR notifies the appropriate bar disciplinary authorities of any finding that an attorney committed intentional professional misconduct ••• whether or not the bar was aware of the allegation or judicial finding on which OPR initiated its investigation.” It goes on to state that OPR has “recently reexamined its bar notification policy and has determined to expand it so that OPR now will notify the appropriate bar disciplinary authorities if it finds that an attorney committed professional misconduct,” whether that misconduct was intentional or merely reckless.

The Court noted that DOJ interpreted its referral policy to permit OPR to refer the Radack investigative findings to the D.C. and Maryland bar regulators. The court held that that such an interpretation was not plainly erroneous or inconsistent with federal administrative regulations.