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April 10, 2017 Top Story

Prosecutor’s Undisclosed Relationship Leads to Ethics Sanctions

AUSA’s relationship with FBI agent violates misconduct and conflict of interest rules

By Kelso L. Anderson

An undisclosed intimate relationship between an assistant U.S. attorney (AUSA) and the AUSA's lead law enforcement investigator prompted an investigation that resulted in a state ethics committee disciplining the AUSA above and beyond the sanction imposed by the U.S. Attorney's Office (USAO). 

In re C. Mignonne Griffing. While the failure to disclose the relationship led to the ethics sanctions, ABA Section of Litigation leaders believe that the AUSA's role as a "minister of justice" in criminal cases compels all prosecutors to be forthcoming and honest with all parties in a criminal proceeding.

Prosecutions Exposed Ethical Violations

In In re C. Mignonne Griffing, the Louisiana Office of Disciplinary Counsel (ODC) recommended a six month suspension from the practice of law plus one year probation to an AUSA who failed to disclose to the USAO an intimate relationship the AUSA had with the lead FBI investigator (the agent) on most of the AUSA's criminal prosecutions. The agent was the principal witness in grand jury presentations and hearings in which the AUSA sponsored the agent's testimony on behalf of the prosecution.

Three prosecutions in particular led to the sanctions against the AUSA; in all three, the ODC determined that the AUSA violated Louisiana Rules of Professional Conduct (RPC) 1.7, 3.8(d), and/or 8.4(a). First, in the AUSA's prosecution of two local councilmen, the agent served as the lead investigator. During the prosecution of the councilmen, the AUSA did not disclose her relationship with the agent to the USAO or the defendants in the case. According to the ODC, the AUSA's intimate relationship with the agent "created a conflict or potential conflict which she was ethically bound to disclose." Additionally, the ODC concluded that the AUSA's intimate relationship with the agent "could reasonably give rise to a basis for questioning the interest and/or credibility of the witness (the agent) by the defense."

Second, the AUSA prosecuted a local sheriff and the agent served as the lead investigator. Once again, during the prosecution of the sheriff, the AUSA did not reveal her relationship to the USAO or to the defendant. The ODC concluded that the AUSA violated RPC 1.7, 3.8(d), and 8.4(a).

Third, in the AUSA's prosecution of the local sheriff, the sheriff's attorney was assured by the AUSA that the sheriff would not be indicted and would be allowed to self-surrender. However, when the AUSA learned that the sheriff was "spreading rumors" about her intimacy with the agent, the AUSA called the sheriff's attorney, threatened, and, subsequently, made good on her threat to have the sheriff arrested. Based on those facts, the ODC concluded without analysis that the AUSA violated RPC 8.4(a) and 8.4(d) in her conversations with the sheriff's attorney—ostensibly, since she induced the sheriff's attorney to represent to his client that he would not be arrested and that untruth was prejudicial to the administration of justice.

Prosecutor's Dishonesty and Special Responsibility

In addition to the prior prosecutions that led to sanctions against the AUSA, the ODC also concluded that the AUSA's denial of her relationship when asked by the USAO was "dishonest and a misrepresentation of material fact," contrary to RPC 8.4(a) and 8.4(c).

"Under RPC 3.8, prosecutors have a special, heightened responsibility in criminal cases," explains Scott E. Reiser, Roseland, NJ, cochair of the ABA Section of Litigation's Ethics & Professionalism Committee. "Arguably, this matter falls under Model Rule 3.8(d), regarding timely disclosure of all evidence or information known which tends to negate the guilt of the accused or mitigate the offense. This case reinforces the need for that Rule," Reiser concludes.

In fact, that failure of a prosecutor to disclose all material facts in a case—including an intimate relationship with a witness—has resulted in adverse decisions against the government in decided cases, explains Basheer Y. Ghorayeb, Dallas, TX, also cochair of the Section's Ethics & Professionalism Committee. Ghorayeb cites Vasquez v. United States as a case in which a prosecutor's undisclosed relationship with a witness had an adverse impact on the government's case.

Enhanced Sanctions Warranted

Prior to the ODC's recommendation of sanctions against the AUSA, the USAO completed an investigation into the AUSA's relationship with the agent and suspended her without pay for 19 days. Citing Standards 4.32 and 6.32 of the ABA Standards for Imposing Lawyer Sanctions, the ODC recommended the enhanced discipline against the AUSA discussed above. ABA Section of Litigation leaders agree that the ODC's recommendation was warranted.

"A prosecutor is a 'minister of justice,'" says Thomas G. Wilkinson Jr., Philadelphia, PA, cochair of the CPR/SOC Professional Responsibility Subcommittee of the Ethics & Professionalism Committee. "When combined with the abuse of her authority by threatening arrest for [the sheriff] for spreading what turned out to be true rumors about the relationship, serious discipline was warranted," Wilkinson, emphasizes.

Agreeing with the prior sentiment, Ghorayeb concludes that the AUSA's conduct was most egregious in the prosecution of the sheriff. "By concealing the relationship, the AUSA deprived her client [USAO] from making an informed decision about whether to waive the conflict of interest and she also deprived the defendant [sheriff] from cross-examining the witness's (the agent) credibility due to his relationship."


Kelso L. Anderson is an associate editor for Litigation News.

Keywords: ethics, RPC 1.7, RPC 3.8, RPC 8.4, conflict of interest, prosecutor

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