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Case 22-1426, Document 77, 06/29/2023, 3536038, Page162 of 258
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Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 160 of 348

different points in time, and regarding different decisions. Menchel, for example, participated in
formulating the USAO’s initial written offer to the defense, but he had no involvement with actions
or decisions made after August 3, 2007. Sloman was absent during part of the most intense
negotiations in September 2007 and did not see the final, signed version of the NPA until he
returned. Villafaña and Lourie participated in the negotiations, and Lourie either made decisions
during the September 12, 2007 meeting with the defense and State Attorney’s Office, or at least
indicated agreement pending Acosta’s approval. In any event, whatever the level of Sloman’s,
Menchel’s, Lourie’s, and Villafaña’s involvement, they acted with the knowledge and approval of
Acosta.

Under OPR’s analytical framework, an attorney who makes a good faith attempt to
ascertain the obligations and standards imposed on the attorney and to comply with them in a given
situation does not commit professional misconduct. Evidence that an attorney made a good faith
attempt to ascertain and comply with the obligations and standards imposed can include, but is not
limited to, the fact that the attorney consulted with a supervisor.202 In this regard, OPR’s
framework is similar to a standard provision of the professional conduct rules of most state bars,
which specify that a subordinate lawyer does not engage in misconduct if that lawyer acts in
accordance with a supervisory lawyer’s reasonable resolution of an arguable question of
professional duty. See, e.g., FRPC 4-5.2(b). Therefore, in addition to the fact that OPR did not
find a violation of a clear and unambiguous standard as discussed below, OPR concludes that
Menchel, Sloman, Lourie, and Villafaña did not commit professional misconduct with respect to
any aspect of the NPA because they acted under Acosta’s direction and with his approval.

III. OPR FOUND THAT NONE OF THE SUBJECTS VIOLATED A CLEAR AND
UNAMBIGUOUS STATUTE, PROFESSIONAL RESPONSIBILITY RULE OR
STANDARD, OR DEPARTMENT REGULATION OR POLICY, IN
NEGOTIATING, APPROVING, OR ENTERING INTO THE NPA

A central issue OPR addressed in its investigation relating to the NPA was whether any of
the subjects, in developing, negotiating, or entering into the NPA, violated any clear and
unambiguous standard established by rule, regulation, or policy. OPR does not find professional
misconduct unless a subject attorney intentionally or recklessly violated a clear and unambiguous
standard. OPR considered three specific areas: (1) standards implicated by the decision to decline
a federal court prosecution; (2) standards implicated by the decision to resolve the federal
investigation through a non-prosecution agreement; and (3) standards implicated by any of the
NPA’s provisions, including the promise not to prosecute unidentified third parties. As discussed
below, OPR concludes that in each area, and in the absence of evidence establishing that his
decisions were based on corrupt or improper influences, the U.S. Attorney possessed broad
discretionary authority to proceed as he saw fit, authority that he could delegate to subordinates,
and that Acosta’s exercise of his discretionary authority did not breach any clear and unambiguous
standard. As a result, OPR concludes that none of the subject attorneys violated a clear and

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202 The failure to fully advise a supervisor of relevant and material facts can warrant a finding that the subordinate
attorney has not acted in “good faith.” OPR did not find evidence supporting such a conclusion here, and Acosta did
not claim that he was unaware of material facts needed to make his decision.

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