New York County Lawyers Association Rule of Law Task Force’s Comment on Proposed Justice Department Rule, 28 CFR Part 77

NEW YORK COUNTY LAWYERS ASSOCIATION RULE OF LAW TASK FORCE’S COMMENT
ON PROPOSED JUSTICE DEPARTMENT RULE, 28 CFR PART 77

          On March 5, 2026, the U.S. Department of Justice (DOJ) promulgated a proposed Rule to amend 28 CFR Part 77 regarding the discipline of current or former DOJ attorneys (the “proposed DOJ Rule” or the “Rule”). Please accept this submission as the New York County Lawyers’ Association Task Force on the Rule of Law’s public comment on the proposed DOJ Rule.¹ We strongly oppose the Rule for the reasons set forth below.

BACKGROUND

         The proposed DOJ Rule would, if approved, give the U.S. Attorney General an unprecedented new role in state disciplinary processes throughout the country. Under the Rule, the Attorney General or its designee (in this case, the Office of Professional Responsibility (“OPR”)) will “have the right to review in the first instance” any allegations that a current or former DOJ attorney violated an ethics rule while engaging in that attorney’s duties for the Department. DOJ attorneys will be required to report to OPR all State Bar complaints filed, or State Bar investigations opened, against them that they come to know about. (We assume that “State Bar”, as used in the Rule, will include complaints filed with states, like New York, who have no unified Bar, and where the disciplinary process is handled by the courts.)

         Once notified of the complaint, OPR will promptly notify the appropriate state disciplinary authority whether OPR will exercise its right to review the Complaint. If OPR decides to exercise that right, it will ask the State disciplinary authority to suspend their investigation or disciplinary proceedings until OPR completes its review, and will direct DOJ personnel not to provide information or otherwise cooperate with the state authority in the interim. If OPR declines to review the Complaint, it will so notify the state authority so the latter may continue its investigation.

         Once the OPR review is completed – and there is no time limit — it may (but is not required to) notify the state authorities, who can defer to or resume their own investigation, perhaps months or years after the misconduct. Critically, if the state authority “should refuse the Attorney General’s request, the [DOJ] shall take appropriate action to enforce this regulation or to prevent the bar disciplinary authorities from interfering with the Attorney General’s review.” (Emphasis added.) What this language means is anybody’s guess, but it certainly suggests that DOJ will take some form of punitive action to prevent state authorities’ interference.

1 It should be noted that the proposed DOJ Rule is subject to the notice and comment requirements of the Administrative Procedures Act, 5 USC § 553. The proposal is not subject to the exception for rules of agency organization, procedure, or practice. 5 U.S.C. § 553 (b)(A) because that exception does not apply to proposals that would depart from existing practice. As explained in more detail below, that would be the case here, as disciplining DOJ attorneys has since 1998 been governed by the McDade Amendment. This change would also have a substantial impact on third parties, both the state authorities who may no longer be able to regulate their licensed attorneys, and those citizens harmed by DOJ attorneys violating the applicable disciplinary rules, who may longer get relief from those state authorities.

OBJECTIONS TO THE PROPOSED DOJ RULE

         The proposed DOJ Rule should be withdrawn for a number of reasons.

          A. THE RULE VIOLATES A FEDERAL STATUTE

          First, it violates statutory law – specifically, the McDade Amendment, 28 USC Section 530B, enacted in 1998, Pub. L. 105–277, div. A, §101(b) [title VIII, §801(c)], Oct. 21, 1998, 112 Stat. 2681–50 , 2681-118. That statute provides, that “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.” (Emphasis added.)

         The proposed DOJ Rule is violative of the above statute, and would be invalid, as a rule may not override a statute. It does not treat DOJ lawyers “in the same manner” as other attorneys admitted in a given state, since it allows OPR to come swooping in and, in the guise of a “review,” indefinitely stay a state disciplinary investigation against them. This will allow the DOJ lawyer to maintain the lawyer’s state license while the stay is pending – even if the state authority was seeking an interim suspension.

         Why would DOJ lawyers get this special treatment? Because, the memo in support of the Rule contends that the Rule has been made necessary by the “weaponization” of state bar disciplinary processes, by which the DOJ presumably means that under the Trump administration there has been an increase in the number of state disciplinary complaints against DOJ lawyers. But there also seems to be extensive evidence, in the form of numerous decisions by the federal courts, that any increase has resulted from an increase in the instances of misconduct that federal courts have found to have been committed by DOJ lawyers. We recognize that many disciplinary complaints lack merit. But in light of recent case law, that is no reason to give DOJ lawyers special protection against this risk. Put simply, even if it were permissible for the DOJ to neuter the McDade Amendment, the DOJ offers no good reason to do so. In fact, there is good reason to believe that today McDade is needed more than ever.

         B. THE RULE VIOLATES OUR FEDERALIST PRINCIPLES

         Second, the DOJ Rule would substantially change the relationship between state and federal discipline of attorneys. The U.S. 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).

         It is, of course, true that federal courts may (and often do) discipline lawyers who appear before them. It is also true that certain federal agencies (e.g., the SEC, the PTO, and the Department of Homeland Security) may do the same. But we know of no instance where federal rules or statutes permit a federal agency to order a state disciplinary authority to refrain acting to protect the citizens of that state from an attorney licensed in that state. Indeed, this would turn on its head the constitutional order that allows states to control attorney admissions, licensure and discipline – a constitutional order that has been in place for more than 235 years, bolstering a rules-based legal system that is the envy of the world. This system does not allow special exceptions for any lawyers, much less for federal lawyers who work for one particular agency.

          In this regard, it is important to note that jurisdictions stay their own disciplinary investigations of a particular attorney in favor of another jurisdiction’s investigation all the time. This is also true as between federal and state investigations of the same lawyer. These types of stays can increase efficiency and help avoid duplicative results. But the key difference is that these stays are voluntary arrangements between co-equal disciplinary authorities; they are not done under threat of “appropriate action” against the state. As noted, what “appropriate action” means in this context is left unclear, but it certainly appears to provide the federal government with a new, amorphous cudgel with which to beat recalcitrant states.

          C. THE RULE VIOLATES OUR CONSTITUTION

          The Rule also violates the Tenth Amendment to the US Constitution, which provides that, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The proposed rule attempts to interfere in a basic function of state and local government, namely the regulation of those attorneys who practice in their courts. Under the Tenth Amendment, the federal government may not intrude on state’s rights to operate their court system and to regulate attorneys they license. This attempt to interfere in state attorney disciplinary processes is not only unconstitutional, it damages our system of justice by preventing state agencies from doing the work of protecting their citizens. Moreover, by creating two tiers of grievance administration – one for attorneys who work for the DOJ and one for attorneys who do not – the proposed Rule arguably violates the equal protection clause.

CONCLUSIONS

          Essentially, this proposed rule blocks the states from investigating ethical infractions by DOJ attorneys and consolidates the power to regulate those attorneys in the hands of one person, the Attorney General. This is an alarming concentration of power. This new rule also creates an appearance and reality of federal authoritarianism and allows the federal government to decide who should, and who should not, be investigated by state authorities based on partisan politics. This is a serious intrusion into the independence of state judiciaries and other bar regulatory agencies from managing those who are permitted to practice in their state’s courts.

          Attorneys representing the people of the United States have a great and grave responsibility to act on behalf of the public. That responsibility must be matched by holding these attorneys accountable when they cross the lines and violate state rules of attorney conduct. Allowing the federal government to control this process with open-ended stays of state disciplinary action is unconstitutional, runs afoul of basic federalist principles, and interferes with the functioning of the state courts. Thus, the proposal should be withdrawn.

About the New York County Lawyers Association
The New York County Lawyers Association (www.nycla.org) was founded in 1908 as one of the first major bar associations in the country that admitted members without regard to race, ethnicity, religion, or gender. Since its inception, it has pioneered some of the most far-reaching and tangible reforms in American jurisprudence and has continuously played an active role in legal developments and public policy.