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Meet the Moment: Action Alert

June 28, 2021

Mar 6, 2026

Editorial credit: Shutterstock.com

 Stop DOJ from Shielding Its Lawyers

Overview of Proposed Rule

On March 5, 2026, the Justice Department filed a Federal Register Notice of Proposed Rulemaking: Review of State Bar Complaints and Allegations Against Department of Justice Attorneys. The proposed rule has a public comment period that concludes on April 6, 2026.

Key aspects of this proposed rule include:

• The Attorney General seeks “to establish a process for reviewing bar complaints  and allegations against its attorneys.” The proposed rule would accomplish this by giving the Department of Justice “the right to review the allegations in the first instance and shall request that the bar disciplinary authority suspend any parallel investigations until the completion of the Department’s review.”  
• The proposed rule also states that “should the relevant bar disciplinary authorities refuse the Attorney General’s request, the Department shall take appropriate action to prevent the bar disciplinary authorities from interfering with the Attorney General’s review of the allegations.”
• The proposed rule would apply to current or former Department attorneys against whom an allegation has been made that the “attorney violated an ethics rule while engaging in that attorney’s federal duties”. 

The Proposed Rulemaking Raises Significant Concerns

The Department of Justice has no legal basis to require the bar disciplinary authorities of a State, Territory, or the District of Columbia to remove a sector of the legal profession (DOJ lawyers) from their oversight, nor is there a legal basis to require them to suspend their own investigations or to prevent them from proceeding if they refuse to defer to the DOJ. Disciplinary authorities have authority over lawyers, including DOJ lawyers.

The Supreme Court has held that “[s]ince the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia” and that they “are responsible for the discipline of lawyers.” Leis v. Flynt, 439 U.S. 438, 442 (1979).
The proposal offers no deadlines applicable to the DOJ by which they must act, creating the likelihood of indefinite delay and non-enforcement. 

The proposed Rule would also violate the McDade Amendment. The McDade Amendment provides that attorneys for the federal government are bound by State ethical rules in the 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.” 28 U.S.C. § 530B(a). Accordingly, the McDade Amendment subjects DOJ lawyers to state ethical rules and the Department of Justice has no basis for arguing that it can usurp that authority with its own exclusive lawyer discipline process.

The Department of Justice lacks credibility with respect to applying ethical standards to its lawyers. As documented in the detailed ethics complaint filed with The Florida Bar against Attorney General Pam Bondi [by a coalition including Lawyers Defending American Democracy, Democracy Defenders Fund, Lawyers for the Rule of Law, and a group of prominent attorneys, law professors, and former judges], senior DOJ leadership has repeatedly pressured DOJ lawyers to follow directives even when doing so violated their ethical and professional obligations. When affected lawyers attempted to comply with their ethical duties, they were terminated. Indeed, the complaint explains how Ms. Bondi has sought to compel Department of Justice lawyers to violate their ethical obligations under the guise of “zealous advocacy,” as announced in her memorandum to all department employees on her first day in office. 

Accordingly, there is no reasonable basis to believe that DOJ can conduct impartial, good-faith investigations of its own lawyers. The “zealous advocacy” memorandum does the opposite of what the Rules of Professional Conduct are meant to achieve. It threatens lawyers with discipline and possible termination for failing to meet the DOJ definition, even though the rules of professional conduct limit the “zeal” of attorneys to “lawful and ethical measures.” Accordingly, any suggestion that DOJ is willing to conduct a thorough and objective investigation into a bar complaint filed against one of its lawyers for crossing ethical lines as set forth in a State’s Rules of Conduct is not credible.

The Department of Justice essentially admits the underlying purpose of its proposed rule is to prevent state disciplinary authorities from holding DOJ lawyers accountable for violations of their ethical duties. DOJ contends that the mere act of filing an ethics complaint against a DOJ lawyer is an act of “weaponization” and that the willingness of disciplinary authorities to “give credence to such complaints” is “troubling.” By preventing state disciplinary authorities from holding DOJ lawyers accountable, the Rule would eviscerate the ethical framework to which all lawyers are subject and which is essential to upholding the rule of law.

Conclusion

The proposed rule seeks to remove an entire category of lawyers - past and present DOJ attorneys - from the disciplinary requirements upon which the public has long relied to ensure that this nation’s lawyers comply with the highest standards of professional behavior.

From the earliest days of the American legal system, state courts had the inherent authority to regulate the lawyers who practiced before them, including the power to admit, suspend, or disbar attorneys for misconduct. In the early 20th century, the American Bar Association adopted the Canons of Professional Ethics, the first comprehensive code of standards for the legal profession.

Over time, the disciplinary framework has undergone review and revisions, resulting in the development of the Model Rules of Professional Conduct which provide the prevailing framework for attorney regulation in this country. States and the District of Columbia have used these rules as the foundation for codifying their own systems of lawyer discipline. No category of lawyer is above the laws and requirements that apply to all attorneys.

Call to action

Lawyers must actively oppose this effort to undermine the State, Territorial, and District of Columbia disciplinary authorities that provide the appropriate structure and expertise to fully investigate and evaluate all complaints against members of the bar.  Ultimately, the courts will likely decide this issue and affirm the important function of State disciplinary authorities holding all lawyers, including Department of Justice lawyers, accountable if they violate their ethical duties.  Submitting comments opposing the Department’s proposed rulemaking is an important step in that direction.

We must do this by:

• Submitting comments on or before April 6, 2026 in opposition to the proposed rulemaking as set forth in the Federal Register Notice.
• Requesting all law-related organizations to speak out and submit comments. This includes urging all bar associations that are not involved in the disciplinary process to participate in responding to this rulemaking process.
• Let your voices be heard in other ways as well. Write articles, letters to the editor, and engage in social media to help the public understand what is at stake.

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