DOJ’s Proposed Rule Threatens to Stop State Bar Associations from Investigating DOJ Lawyers
On March 5, the Department of Justice (DOJ) proposed a new regulation formalizing a process in place since the late 1970s and boldly asserting unspecified federal authority over the timing of state bar investigations. The proposed rule creates far more problems than it claims to solve. And it puts DOJ career attorneys directly in the crosshairs. For this reason, we urge our fellow DOJ alums to submit a comment by April 6, 2026, urging the Department to reject this proposed new rule.
Accountability at DOJ
To appreciate why we oppose this new rule, it’s helpful to understand how the Department’s system of accountability used to work. Federal law, of course, requires every DOJ attorney to maintain an active bar license in a state. Federal law also requires DOJ attorneys to satisfy the ethical requirements of the state in which they are licensed and the state in which they practice. Because DOJ attorneys practice across the country, DOJ created the Professional Responsibility Advisory Office to help attorneys navigate varying state bar rules.
Courts also routinely hold DOJ attorneys to an even higher standard of conduct, as they should: DOJ attorneys work to protect the public interest. As former career DOJ attorneys, we know how seriously our former colleagues took their ethical obligations and how seriously the Department took its responsibility to ensure even-handed accountability.
The Department’s process for ensuring attorney accountability, even as late as 2024, generally followed a predictable pattern:
If a Court suggested that a DOJ attorney may have violated their ethical duties, DOJ policy triggered a self-reporting obligation and the DOJ supervisor would typically report that incident pre-emptively to DOJ’s Office of Professional Responsibility (OPR), the office responsible for investigating alleged attorney professional misconduct. This referral was only required if the allegation was non-frivolous, but many supervisors referred all such allegations out of an abundance of caution. OPR also independently combed through various legal databases and press reports to identify possible allegations for investigation.
Upon a referral or spotting an allegation, OPR typically opened an investigation and asked the DOJ supervisor to forward relevant filings from the case. OPR often waited to actively investigate until after the relevant Court made findings or dismissed the allegations.
After the Court determined whether the allegations constituted misconduct and imposed any punishment for the attorney, OPR completed its investigation, taking statements from the relevant DOJ employees and gathering any additional evidence necessary.
If OPR found misconduct, its findings were referred to a centralized DOJ Review Board (which has had many names over the years, but is currently the Professional Misconduct Review Unit (PMRU)), for determination of any discipline against the attorney, including possible referral to the relevant state bar(s).
At any point in this process, a complaint also could have been filed with the attorney’s state bar or the bar of the state in which they were practicing. Under those circumstances, OPR typically suggested to the state bar that if they delayed their investigation until after OPR had concluded its investigation, OPR may be able to share with the state bar the results of OPR’s investigation. Given the staffing limitations of many state bars, this was an efficient and mutually beneficial arrangement.
Of course, at each of these steps, the Court, the state bar, and DOJ each maintained the right to actively investigate at any point; none was bound to await the outcome of the other’s process. Instead, this informal sequence which was in place for decades hinged on a level of mutual respect and collaboration.
These informal agreements to sequence investigations were observed as a matter of efficiency and professional courtesy. While this system could be slow and sometimes frustrating, it sensitively balanced the potentially conflicting authorities of DOJ and the state bar system. It also helped to protect the Department. By taking the lead in investigating Department attorneys alleged to have run afoul of their professional ethical obligations, the Department could protect confidential information generated in the course of that attorney’s attorney-client relationship with the United States from disclosure to a state bar until it became clear that there was some reason for a state bar to intervene. In many cases, once DOJ had taken disciplinary action, state bars saw no reason to investigate further.
The Dangers of the Proposed Rule
In sharp contrast, the rule DOJ proposes threatens this collaborative relationship, to the detriment of DOJ’s hard-working career attorneys, in at least five ways:
The proposed rule appears to defy federal law, which requires that DOJ attorneys be subject to the same rules “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). A mandatory delay of the state bar investigation, solely for the benefit of DOJ, appears inconsistent with this Congressional mandate.
The proposed rule threatens to “take appropriate action” against any state bar that does not agree to stand down while DOJ performs its own investigation. State supreme courts have long been understood to have the inherent power to regulate the practice of law in that state, including through enforcement of state bar rules of professional responsibility. See Leis v. Flynt, 439 U.S. 438, 442 (1979). DOJ’s claims of supremacy in this area appear legally unsupported.
The proposed rule unilaterally awards to DOJ exclusive control over timing. Even if a state bar agrees to delay its investigation, the proposed rule commits to no particular timeline. Rather, DOJ attempts to reserve for itself the ability to delay the bar investigation indefinitely, potentially evading any independent accountability. This delay mechanism is particularly egregious in the case of former Department attorneys, where OPR and the review board have little authority to recommend disciplinary measures against an attorney who has left the Department. At a minimum, should the rule be adopted, it should include a timeline (30 days, for example) by which DOJ will notify the state bar whether it intends to undertake any investigation at all.
By antagonizing state bars, it undercuts the sequencing process that had long been in place, threatening the cooperative relationships and delicate negotiations that could previously be employed to attempt to protect confidential Department information while supporting attorneys’ efforts to defend themselves against insubstantial allegations.
And especially troubling is the preamble’s threat that DOJ may direct its attorneys not to respond to state bar investigations, even in confidential interviews. That legally dubious assertion of power over DOJ career attorneys puts them in an impossible bind: without the ability to defend oneself, the DOJ attorney could lose the license required to practice law. Case law generally recognizes an attorney’s right to share even privileged information with outside counsel for consultation regarding their legal rights. The same principle surely applies to defending the license that undergirds their law practice.
None of what DOJ proposes in the rule is helpful to ensuring even-handed accountability for attorneys appearing on behalf of the United States and instead threatens to upend a long-standing system of respect, in a dubious legal power grab.
As the introductory materials to the published proposed rule note, and contrary to the claim that state bars are weaponized against Department attorneys, the long-standing pattern of sequencing attorney misconduct investigations so that courts went first, OPR went second, and then state bars came in to see if any additional remedial action was necessary, worked for decades. It was not without its hiccups, but in many cases, tensions could be ameliorated through cooperation, collaboration, and compromise. The key to this process working out for everyone was in relationships based on trust, built over years of interaction, that DOJ would do the right thing and hold accountable attorneys who overstepped their ethical obligations.
The only reason a change in this long-standing process is being suggested by Department leadership now is because DOJ and its attorneys have acted in ways that have substantially eroded that trust – both in attorneys’ commitment to fulfilling their ethical obligations and in the Departments’ commitment to holding them accountable when they do so.
Rather than upend a system that worked for years and create a new one mired in distrust and heavy-handed assertions of dubious power, Department leadership would do better to remember their obligations to the institution and to the country and work to restore DOJ so that it is trustworthy and accountable both to its many employees and to the people it serves.
What You Can Do
It is particularly important for former DOJ attorneys and other employees to submit a comment urging the Department not to adopt the proposed rule. We know from experience the power DOJ attorneys wield over Americans’ lives and interests, and the reasons why proper accountability mechanisms must be maintained. We invite you to use any of the points we make in this piece, and Lawyers for Good Government and the National Women’s Law Center have provided some helpful tips. Of course, attorneys who choose to comment – whether current or former DOJ employees – should be mindful of their duty of confidentiality to their (former) client and should maintain attorney-client privileges.
If you are a current employee and choose to comment on the proposed rule, you do not have to identify yourself as a current employee. If you choose to identify yourself, you should state that you are writing in your personal capacity, not your official capacity. Current employees should only comment on your own time and using your own personal computer. If you are currently working for the department as an attorney, you should comment only on behalf of yourself, no one else.
Jennifer Ricketts served for almost 35 years as an attorney in the Civil Division’s Federal Programs Branch, the majority as its Director.
Rupa Bhattacharyya spent 20 years in DOJ’s Civil Division, including as the Director of the Office of Constitutional and Specialized Tort Litigation Section, the Special Master for the September 11th Victim Compensation Fund, and an attorney in the Federal Programs Branch.
Both Jennifer and Rupa serve as advisory committee members for Justice Connection.
