Amicus Brief

More Than 70 Legal Ethics Experts Warn DOJ Is Trying to Put Its Lawyers Above the Law

June 28, 2021

Jul 29, 2026

Editorial credit: Shuterstock

Lawyers Defending American Democracy and Democracy Defenders Fund have filed an amicus brief on behalf of 76 legal ethics scholars and experts, urging the U.S. District Court for the District of Columbia to reject efforts by the Department of Justice to stop disciplinary proceedings against former DOJ lawyer Jeffrey Clark. The amicus brief warns that the DOJ is trying to shield its lawyers from the same independent ethics enforcement that applies to every other attorney. 

In October 2021, LDAD, along with a distinguished coalition of bar members and ethics experts, filed a detailed ethics complaint against Mr. Clark, setting forth allegations regarding his involvement in efforts to overturn the 2020 election. Following an investigation, the District of Columbia Board of Professional Responsibility recommended that Clark be barred from the practice of law.  Mr. Clark has appealed.

A key argument in Mr. Clark’s appeal is his argument that the D.C. Board of Professional Responsibility lacks authority to regulate the conduct of  Department of Justice (DOJ) lawyers who are admitted to the D.C. Bar. In support of Mr. Clark, the administration filed a lawsuit that is consistent with its ongoing efforts to usurp the authority of all State courts, including the D.C. Court of Appeals, to investigate and discipline lawyers who work for the DOJ.

This brief, in support of the D.C. Court of Appeals, the D.C. Board on Professional Responsibility, and the D.C. Office of Disciplinary Counsel, describes the longstanding well-established principle that lawyers are subject to ethical regulation by the highest court in each jurisdiction in which they are licensed to practice.  Further, Congress spoke to this issue through the adoption of legislation in 1998 that explicitly states that DOJ lawyers are to be regulated in the same way as are all other lawyers.  

“The brief recounts consistent Supreme Court jurisprudence over the years that recognizes the regulatory authority of States and the District of Columbia over the conduct of lawyers admitted to practice within their jurisdiction,” noted Georgetown Law Center Professor and LDAD Board member Mitt Regan.  “The brief further provides considerable detail on the legislative history that underscores the intention of Congress to affirm State regulatory authority over DOJ lawyers, while rebutting the government’s contention that State regulation raises Supremacy Clause concerns. Indeed, ensuring ethical conduct by Department lawyers helps the administration meet its constitutional obligations and protects the rule of law.”

Stephen Marcus, a legal ethics expert and LDAD volunteer who contributed to the brief stated, “Upholding the rule of law depends on all lawyers complying with their ethical duties. This case would have significant implications as it could result in the exemption of DOJ lawyers from state ethical regulations and risk creating a class of lawyers who are not accountable for ethical misconduct. The arguments in the amicus brief provide the U.S. district court with irrefutable grounds for dismissing DOJ’s lawsuit.”    

The brief was coordinated by Professor Leslie Levin of the University of Connecticut Law School and Georgetown Law Center Professor and LDAD Board member Mitt Regan; and prepared by LDAD volunteer lawyers Stephen Marcus and Gerson (“Gary”) Ratner; the Peter Kiewit Foundation Professor Emeritus of Law and the Legal Profession at the Sandra Day O’Connor College of Law,  Myles V. Lynk; and Democracy Defenders Fund attorneys  Chris Swartz and David Ogden.  Research and other assistance were provided by Georgetown Law students Tayler Smith, Gladwin An, and Verdant Bhargava.

Stay Informed —

Be the first to know about LDAD news by following us on social media (LinkedIn, Instagram, Bluesky, and Facebook) and by signing up for our newsletter.

featured press