DOJ Proposes to Shield Its Attorneys from State Bar Oversight
Comment on Department of Justice proposed rule: “Review of State Bar Complaints and Allegations Against Department of Justice Attorneys” OAG199
I write this comment in opposition to the Department of Justice’s proposed rule governing review of state bar complaints against DOJ attorneys. I am an attorney licensed in Massachusetts and Washington, DC. I write based on my experience as a former Attorney Advisor with the Merit Systems Protection Board and with the U.S. Department of Education. I also worked as a practitioner litigating cases against the Federal government. Put simply, this rule undermines the independence of attorney discipline, conflicts with established law, creates structural conditions ripe for abuse, and puts individual DOJ attorneys in an untenable position – all without solving any legitimate problem.
My background gives me real exposure as to the importance of government ethics
As a former federal attorney, I was subject to the same ethics framework the DOJ now seeks to exempt itself from. I operated under state bar rules while serving in a federal role. I understood those obligations, and they did not impair my ability to do my job—the system worked as Congress intended.
As a former opposing counsel to multiple Federal agencies, including the DOJ, I can confidently say that the independence of the disciplinary process is a concrete protection for individuals suing the government. Funneling ethics complaints through an employer (i.e., the DOJ) before or instead of a neutral arbiter (i.e., state ethics processes) eliminates deterrent effects of professional discipline. What are the consequences for an unscrupulous government attorney when there are no guarantees of a fair and thorough review of ethics complaints made against them?
Now, as a practitioner serving nonprofits, many of my clients engage with Federal agencies, depend on Federal funding, or are subject to Federal enforcement. In my practice, I stress the importance of establishing and maintaining solid and meaningful ethical policies—both because the law requires it and because it is the right thing to do for people in positions of public trust. This rule would create a two-tier ethical environment in which those enforcing the law are not bound by the same standards as those subject to the law. This rule, as written, does not consider the extent to which ethical compliance will deteriorate across the government and private sectors.
According to the most recent Gallup poll on the subject, public trust in U.S. institutions is near historic lows. This rule pays no mind to the inevitable acceleration of that decline.
The proposed rule is in clear conflict with the McDade Amendment (28 U.S.C. § 530B)
The 1989 DOJ Thornburg memo asserted that Federal prosecutors were not subject to certain state ethics rules. Courts rejected this (see, e.g., U.S. v. Ferrara, 847 F. Supp. 964 (D.D.C. 1993) (finding it was not “necessary and proper” government conduct for DOJ to enjoin an investigation by a state bar)), and Congress passed the McDade Amendment addressing the exact point: “an attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.” This language is not ambiguous. It is a direct, affirmative command.
The DOJ’s argument that “in the same manner” refers only to substantive rules under similar factual circumstance, not enforcement procedures, strains beyond credulity the plain meaning of the phrase. In ordinary legal usage, “in the same manner” means by the same method or procedure — it is precisely a procedural mandate. DOJ’s attempts to rely on its own 1999 regulatory gloss cannot override a statute, particularly one so clear as this. Moreover, the portion of section 530B directing the Attorney General to “make and amend rules of the Department of Justice to assure compliance” with the section is not a broad grant of authority to regulate the entire field of attorney ethics enforcement. It is a narrow compliance directive—the AG must ensure DOJ attorneys are subject to, not shielded from, the state rules. The proposed rule inverts the section entirely. Loper Bright further deteriorates the weight of the DOJ’s interpretations. It is the courts that exercise independent judgment on this statutory meaning, and the plain text and legislative history of 530B cuts sharply against the DOJ’s position.
The proposed rule defies constitutional precedent and principles of Federalism
State authority over attorney discipline is foundational and axiomatic. The Supreme Court unambiguously stated that “the licensing and regulations of lawyers has been left exclusively to the States” since the founding of the Republic. Leis v. Flynt, 439 U.S. 438, 442 (1979). It further recognized states’ “extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses” and that “states traditionally have exercised extensive control over the professional conduct of attorneys.” Middlesex County Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423 (1982).
The DOJ’s argument that state discipline procedures interfere with DOJ attorneys’ ability to perform Federal duties fails on both the law and the facts. The DOJ argues that state procedures are implicitly preempted because of this supposed interference. But the Supreme Court disfavors implied preemption in areas of traditional state regulation, and, as just discussed, this is clearly one of those areas. The presumption runs strongly against preemption here, and DOJ has not come close to rebutting it.
Further, the DOJ’s necessity argument is not just weak, it is contradicted by the entire history of the Department. As noted above, the Supreme Court held in Ferrara that the Supremacy Clause did not bar a state bar investigation, because defying state ethics rules is not “necessary and proper” for DOJ attorneys to perform their duties. DOJ attorneys have been subject to state bar discipline since the Department was founded. It has never been demonstrated, and never will because it is not true, that compliance with state ethics rules impairs Federal law enforcement. DOJ’s justification for this rule is predictably devoid of evidence on this point.
Separately, Congress has required since at least 1979 (28 U.S.C. § 530C) that DOJ attorneys be “duly licensed and authorized to practice” under state law. A Federal agency cannot simultaneously claim that state licensing authority is valid and that state disciplinary authority – the enforcement mechanism that makes licensing meaningful – is preempted. The two are inseparable.
The DOJ’s justifications for this rule are without evidentiary support
DOJ asserts that political activists have weaponized bar complaints against senior DOJ attorneys. It offers no evidence. It identifies no complaints that were frivolous. It shows no pattern of abuse. It points to no statistics. The mere fact that complaints have been filed is not evidence of weaponizations. Some of these complaints may be entirely valid, and an independent investigation is precisely the avenue by which to determine that. DOJ conflates “complaints it doesn’t like” with “abuse of process”. This is precisely the kind of self-interested reasoning that makes independent oversight necessary in the first place.
The DOJ also suggests that because its attorneys practice in multiple states with varying ethics rules, the Department is better positioned to handle discipline. This may be a real issue, but it has long been managed. The Office of Professional Responsibility has provided ethics guidance to DOJ attorneys for decades. State bars and courts have long dealt with multi-jurisdictional practitioners. This is not a new problem. DOJ has never argued that it justifies displacing state discipline entirely. If the DOJ is genuinely concerned about multistate compliance, a solution should focus on coordination between the various interested entities, not preemption of the states.
Perhaps most tellingly, the DOJ provides no explanation for why a rule of this scope and consequence is necessary now, after more than 150 years of DOJ attorneys operating under state bar oversight. The absence of any historical crisis undermining DOJ’s ability to function is itself evidence that the stated justifications are pretextual.
Structural defects make the rule unworkable and dangerous
As lawyers, we are bound by deadlines, process, and transparency. These rules are based on the bedrock principles of ensuring timely and just results and efficient institutions. The DOJ’s rule has no defined process, no standards, and no transparency requirement. The AG has complete discretion. This means that a complaint could be frozen indefinitely while the state bar is asked to stand down. There is no mechanism by which a complainant, the bar, or a court can compel the DOJ to act. This is not a regulatory framework; it is an executive agency’s veto with no expiration date.
When I litigate against a DOJ attorney, I am subject to my state bar’s full disciplinary authority in the normal course. Under this rule, my opposing counsel would not be. That asymmetry is fundamentally incompatible with the principle that all attorneys practice before a court are subject to the same professional standards. Courts and clients depend on that equality.
This rule sends a message to DOJ attorneys that their ethics complaints, including those referred from state courts, will be routed through their employer before any independent body reviews them. The deterrent effect of professional discipline would be essentially nonexistent—a perverse incentive at exactly the moment when the AG is directing AG attorneys, through her zealous advocacy memo, to advance presidential policy without room for personal professional judgment.
Individual DOJ attorneys will be in an impossible bind under this rule. If a state bar demands documents or testimony in connection with an investigation, and the DOJ instructs the attorney not to comply, that attorney faces irreconcilable obligations: non-compliance with the bar risks license suspension or disbarment; compliance risks termination and DOJ sanction. The rule would protect the institution at the expense of the individual, and the individual would have no meaningful recourse.
The rule asks us to trust DOJ to impartially investigate its own attorneys at a moment when OPR's senior leadership has been replaced with junior political appointees, when approximately 5,500 attorneys and staff have left the Department, when recruiting standards have reportedly been lowered, and when the AG has explicitly instructed attorneys that they are “the president's lawyers” and that ethical objections to directives can result in termination. This is not the institutional environment in which sole investigative authority over attorney conduct should be concentrated.
Alternatives the Department should consider
If, despite the total absence of evidence supporting, state bar investigation of DOJ attorneys is so hampering the agency’s ability to fulfill its function, there are reasonable alternatives than the proposed rule:
1. Formalize coordination protocol with state bars: Rather than a review-and-suspend model, the DOJ could establish a mutual notification system by which OPR is notified when a complaint is filed against a DOJ attorney, and the bar keeps OPR informed of its investigation. This addresses any legitimate coordination concern without displacing state authority.
2. Define a short review window: If DOJ retains any review role at all, it must be time-limited by a reasonable 30- to 60-day window. Upon expiration with no DOJ action, the state bar investigation proceeds automatically and unconditionally. This prevents indefinite suspension and forces DOJ to act if it wants to be involved.
3. Transparent process with written findings: Any DOJ review must result in a written determination, subject to disclosure to the complainant, the bar, and the attorney. Unreviewable, undisclosed determinations are incompatible with basic administrative law principles.
4. Strengthened OPR advisory function: The multi-state compliance concern is real but addressable. DOJ could expand OPR’s proactive advisory capacity by providing attorneys with clear, jurisdiction-specific guidance on conflicting ethics rules before problems arise. This is a cooperative solution that addresses the stated problem without Federal overreach.
Conclusion
The proposed rule should be withdrawn or else substantially rewritten. As proposed, it conflicts with the plain text and legislative history of 28 U.S.C. § 530B, defies longstanding Supreme Court precedent on state authority over attorney discipline, and rests on unsupported factual premises. Its structural design, including unchecked discretion, no timelines, and no transparency, is not consistent with basic administrative law requirements. And it arrives at a moment when the Department’s institutional credibility to self-police is at a historic low.
If DOJ proceeds despite these objections, it must at minimum address the statutory conflict, establish binding timelines and a transparent process, and demonstrate – with evidence – why the alternatives proposed above are insufficient. The record as it stands does not come close to supporting a rule of this scope.
The legal profession’s ethical accountability must be independent of the institution being regulated. That principle is not controversial. It is foundational.