November 17, 2010
Intake Unit/Office of the Chief Trial Counsel
State Bar of California
1149 South Hill Street
Los Angeles, California 90015-2299
VIA FACSIMILE & UK MAIL
I. INTRODUCTION & NOTICE OF COMPLAINT:
Please register a formal ethics complaint against Mr. Thomas P. O'Brien (Bar No. 166369) for misconduct relating to exceeding approved travel spending limits while serving as the U.S. Attorney for the Central District of California.
II. SUMMARY OF FACTS:
Respondent Mr. Thomas P. O’Brien ("O'Brien") is a member of the State Bar of California. He graduated from the United States Naval Academy in 1981, and from the University of San Diego School of Law in 1993, where he was an Associate Editor of the San Diego Law Review and received his degree with honors. Presently, O'Brien is a litigation partner with Paul Hastings in Los Angeles, where he leads the firm’s west coast White Collar practice group.
From October 2007 to October 2009, O'Brien served as the United States Attorney for the Central District of California. It was during this time period that O'Brien engaged in misconduct by knowingly staying in hotel rooms which he knew exceeded his approved spending limits.
Of the 23 hotel vouchers O’Brien submitted during his tenure, six exceeded the allowable rate and provided insufficient justification. The total overage was $903. A recent report by the Department of Justice’s Inspector General found that a few of O’Brien’s claims for reimbursement were “inappropriate and egregious violations” of the policies governing federal employees. Moreover, the Department of Justice’s Inspector General found that O'Brien exhibited a noteworthy pattern of exceeding the government rate, and that his travel documentation provided insufficient, inaccurate, or no justification for these excesses.
According to the Los Angeles Times when interviewed by investigators, O'Brien blamed his secretary for selecting the more expensive rooms on her own and denied telling her to misrepresent the reason for the increased expenditures, the report states. If she said otherwise, O'Brien told investigators, "it was to cover her own misconduct."
Please note that we have cited the above report by the Inspector General for your reference; however, after having fully familiarized ourselves with the circumstances surrounding O'Brien's travels, as well as his subsequent statements and actions, we are only able to point with certainty to one instance in which O'Brien exceeded the allowable budget by $206 without providing adequate justification or explanation.
Specifically, O'Brien, who lives in Los Angeles, was scheduled to deliver a speech at a morning conference in Anaheim. Rather than driving from Los Angeles to Anaheim on the morning of the conference, O'Brien opted to travel to Orange County the previous night in order to avoid the rush-hour commute. However, rather than booking a room at the conference hotel for $143 per night, he opted to stay in a hotel situated 20 miles away in Newport Beach for $349 a night. The Inspector General's report states that O’Brien “provided no explanation” for his decision not to stay in the Anaheim hotel.
It is certainly plausible that O'Brien -- who in addition to being the U.S. Attorney for the largest district in the U.S. and was the main speaker at the conference -- wanted to isolate himself the previous night in order to prepare and rehearse his speech. If he had stayed at the Anaheim hotel, where the convention was held, he could have, for example, have run into old friends and colleagues and felt an obligation to socialize with them. Another plausible explanation is that O'Brien wished to maintain a healthy professional distance from his subordinates by not encountering them in the dining room and the gym, for example.
If O'Brien provides the State Bar of California with an explanation or justification similar to the above regarding his decision to stay in Newport Beach rather than Anaheim, we ask that this complaint be withdrawn.
In addition, after carefully reviewing the report issued by the Inspector General, Complainant finds it legally insufficient and lacking merit sufficient to sustain any accusations against O'Brien as it is primarily based on hearsay evidence that was not subjected to vigorous cross-examination. Most troubling is the claim by the secretary that it was O'Brien who instructed her to exceed the allowable budget. A more plausible explanation is that the secretary wished to curry favor with her supervisor -- the person who evaluates her performance and decides whether or not she will obtain a raise and be promoted.
Given O'Brien's stellar career, his unparalleled contribution to the community, the fact that he is otherwise a model citizen, his spontaneous payment of restitution and the secretary's lack of credibility, complainant asks that the State Bar privately reprove O'Brien if he fails to offer a justification or explanation for his decision to stay in the hotel in Newport Beach, rather than Anaheim.
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