Proposed rule allowing DOJ to interfere with state bar discipline proceedings ‘legally flawed’

On March 5, the U.S. Department of Justice under Attorney General Pam Bondi issued notice of a proposed rule that would halt, or at least interfere with, state bar authorities‘ exclusive jurisdiction to investigate and prosecute violations of ethics rules by lawyers admitted in those states.

The proposed rule states:

“Before the bar disciplinary authorities of the States, the Territories, or the District of Columbia undertake any investigative steps that seek information or otherwise require participation from an attorney for the government in response to allegations that a current or former attorney for the government violated a rule of ethical conduct … the Attorney General shall have the right to review the allegations in the first instance.”

The proposed rule applies to all complaints against lawyers, whether stemming from a complaint by a third party or one initiated by the state’s bar counsel.

The proposed rule says the AG may decide to review the allegations herself and, if she does, the state bar authorities will be asked to suspend their investigations until the attorney general completes her review.

If the AG decides not to complete her review, she will notify the local bar authorities, who then will be free to resume their investigation.

On the other hand, if the attorney general decides to complete her review, she may decide that the government attorney did not violate any rule of ethical conduct in his or her work on behalf of the government, thereby preempting any state enforcement.

The rule includes an ominous statement in the event local bar authorities do not step back: “Should the relevant bar authorities refuse the Attorney General’s request, the Department shall take appropriate action to enforce this regulation or to prevent the bar disciplinary authorities from interfering with the Attorney General’s review of the allegations.”

This latest effort by the attorney general clearly is intended to obstruct the administration of justice by seeking to disable state bar authorities from enforcing the ethics rules against lawyers licensed by the highest courts of those states.

There can be no doubt that this maneuver by the DOJ under Attorney General Bondi has been spawned by the increasing news reports of DOJ lawyers being criticized by federal judges for making misstatements to the court, filing frivolous suits and taking groundless positions.

An early effort to address ethics violations was made in Florida against Bondi herself for violating the due process rights of Kilmar Abrego Garcia. Perhaps not surprisingly, the state bar authorities deferred taking action, saying that they could not investigate a federal officer while in office.

Every state bar discipline authority should oppose this proposed rule. Already, the chair of the D.C. bar rules of professional conduct review committee has spoken out, saying the proposed rule is “inconsistent with all precedents.”

The rule is legally flawed on several grounds. First, it has always been the case that the highest court of every jurisdiction in the United States has exclusive jurisdiction over the practice of law in those jurisdictions and over the persons who hold law licenses granted by those high courts.

Second, it has also been the case that local federal rules incorporate and adopt the ethics rules of the jurisdictions in which they are located and, in most cases, defer to the state bar authorities to investigate the violations and pursue them.

Third, the DOJ lawyers who have been the subject of criticism by the federal judges before whom they appear presumably are in court and taking the positions they take at the direction of their superiors, including, ultimately, by the attorney general herself. Granting the attorney general the sole authority to take bar discipline complaints away from the local authorities and decide whether a violation has occurred would be counter to any notion of justice. In short, impartiality or fairness is absent where the person directing the subordinate lawyer to prosecute the case, withhold relevant information, or litigate groundless positions is the judge of whether such conduct violates the rules.

Finally, and perhaps most seriously, the AG’s proposed rule places government lawyers at further professional risk. Each one of those lawyers has a right to refuse to take action that he or she believes in good conscience violates the bar discipline rules. Indeed, the rules require a lawyer, when confronted with such a situation, to decline to act. The fact that the subordinate lawyer acts at the direction of a supervisory attorney provides no safe haven.

The proposed rule, if adopted, may appear to create protection for subordinate lawyers and may, therefore, encourage them to take risks. However, there is no guarantee that those attorneys will be protected, especially once the current administration’s term ends or the lawyer leaves government service.

Thomas F. Maffei is senior counsel at Sherin & Lodgen in Boston, where he advises lawyers and law firms on professional ethics issues.

Every state bar discipline authority should oppose this proposed rule.