NEED TO KNOW

• DOJ published a proposed rule March 4 letting Bondi suspend state bar ethics probes of department lawyers
• The rule covers current and former DOJ attorneys, with no time limit on how long the internal review may last
• State bars that refuse to stand down face federal "appropriate action" under the rule's enforcement clause

WASHINGTON, D.C. (TDR) — The Department of Justice published a proposed rule Wednesday in the Federal Register that would authorize Attorney General Pam Bondi to suspend state bar ethics investigations into current and former DOJ lawyers any time the department elects to conduct its own internal review of the same allegations. The rule is subject to a 30-day public comment period before it can be finalized. Legal experts across the professional spectrum swiftly challenged the proposal as an illegal override of a 1998 statute Congress passed specifically to prevent DOJ from exempting its lawyers from state ethics oversight.

The rule arrives as Bondi, Deputy Attorney General Todd Blanche and numerous front-line DOJ prosecutors face active state bar complaints in multiple states, filed by legal watchdog groups and law professors alleging ethical violations in the course of defending administration policies in federal court. The Florida Bar previously declined to investigate Bondi herself, citing a state doctrine that bars action against sitting federal officials, a determination the Florida Supreme Court declined to overturn last October.

How the Proposed Rule Would Work

Under the proposed regulation, whenever a third party files a bar complaint, or a state bar opens an investigation without a complaint, against a current or former DOJ attorney for conduct during their official duties, the attorney general gains what the rule describes as a "right to review the complaint and the allegations in the first instance."

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Bondi or a designee would then notify the state bar and the affected attorney, and "request that the relevant State bar disciplinary authorities suspend any investigative steps that require information or other participation from a Department attorney" until the department's own review is complete.

The rule contains no deadline for completing that review. Lauren Stiller Rikleen, executive director of Lawyers Defending American Democracy and one of the groups that filed a bar complaint against Bondi, noted that the DOJ's Office of Professional Responsibility, which would conduct the internal reviews, has experienced significant staff attrition. Without a time limit, she said, the department could effectively run out the clock on state investigations without ever completing its own.

If the department finds no violation, that finding blocks the state from pursuing the same allegations. And the rule's enforcement mechanism is explicit: should a state bar refuse to suspend its investigation, "the Department shall take appropriate action to prevent the bar disciplinary authorities from interfering with the Attorney General's review."

"This is about DOJ interfering with the states' licensing authority of lawyers for the political benefit of this administration. This is going to have a chilling effect on appropriate complaints about DOJ attorney misconduct." — Kevin Owen, partner, Gilbert Employment Law

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The proposal also extends to former DOJ attorneys, a provision legal analysts noted would cover figures such as Jeffrey Clark, the former assistant attorney general facing potential disbarment in the District of Columbia for his role in efforts to use the Justice Department to challenge the 2020 election results.

What the McDade Amendment Actually Says

The central legal dispute turns on a 1998 federal statute known as the McDade Amendment, enacted after DOJ lawyers in the 1990s attempted to claim exemption from state ethics rules. The statute is direct: DOJ attorneys "shall be subject to State laws and 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."

The statute also includes a second clause the department is now citing as its authority: the attorney general "shall make and amend rules of the Department of Justice to assure compliance" with the law.

DOJ's proposed rule reads that second clause as authorizing the attorney general to establish her own enforcement mechanism for state ethics standards, effectively inserting federal review as a prerequisite before state bars may proceed. Critics argue that interpretation inverts the plain text: a rule requiring DOJ sign-off before state bars can investigate is not a rule that "assures compliance" with state ethics standards. It is a rule that delays and potentially eliminates state enforcement.

"The rule she's proposing would not 'assure compliance' with the statute — it would repeal part of the statute. Congress said clearly that DOJ lawyers are 'subject to' state bars' rules 'in the same manner' as every other attorney in the state." — Mark Joseph Stern, legal analyst, Slate

The Supreme Court has also weighed in on the broader principle. In Leis v. Flynt, the Court confirmed that "since the founding of the Republic, licensing and regulation of lawyers has been left exclusively to the States." That precedent, legal observers note, sits directly in the path of any federal rule claiming authority to preempt state bar proceedings.

"It is inconsistent with all precedents. The way that the DC Bar disciplines lawyers is an independent process that happens in the DC Court of Appeals." — Hilary Gerzhoy, chair, DC Bar Rules of Professional Conduct Review Committee

The Context Behind the Proposal

DOJ's Federal Register filing frames the proposed rule as a response to the "unprecedented weaponization of the State bar complaint process" by "political activists." The department argues that bar complaints against its attorneys risk "chilling the zealous advocacy" of DOJ lawyers on behalf of the United States.

Legal watchdog organizations and bar association leaders dispute that framing. More than 70 lawyers, law professors and former judges, including two former Florida Supreme Court justices, requested the Florida Bar investigate Bondi last year for allegedly directing federal prosecutors to violate defendants' due process rights, using the unlawful deportation of Kilmar Abrego Garcia as a central example. State bars have shown mixed willingness to act: Virginia initially declined to investigate interim U.S. Attorney Lindsey Halligan; New York referred complaints about Emil Bove to DOJ's own internal office rather than opening an independent probe.

The proposed rule would institutionalize that dynamic by making DOJ the official first reviewer of all complaints against its own attorneys, a structure critics describe as asking the department to police itself.

"Over the past several years, political activists have weaponized the bar complaint and investigation process. This unprecedented weaponization of the State bar complaint process risks chilling the zealous advocacy by Department attorneys on behalf of the United States." — DOJ Federal Register filing

"Senior DOJ officials find themselves the subject of disciplinary complaints because they keep lying to judges and publicly declaring that they're at 'war' with federal judges. The disciplinary process is only weaponized against senior officials because they're committing the violations we built this weapon to prevent." — Above the Law analysis

What Happens Next

The rule is open for public comment through early April. Legal experts broadly expect any finalized version to face immediate court challenges, with plaintiffs likely to argue that the McDade Amendment forecloses the regulatory path DOJ is attempting. Congress passed that statute specifically because DOJ tried to exempt its lawyers from state ethics rules once before, and the statutory text was written to leave no ambiguity.

What is less certain is who will bring that challenge, how quickly courts would act, and whether the 30-day comment window will produce any modification to the rule's most contested provisions, including the absence of any time limit on departmental reviews and the explicit threat of federal "action" against state bars that decline to stand down.

"We have an entire infrastructure dedicated to providing standards of professional conduct. Without time limitations in the proposal, the Justice Department could run out the clock on investigations instead of actually pursuing them, blocking any possibility of holding federal attorneys accountable in the states where they practice." — Lauren Stiller Rikleen, executive director, Lawyers Defending American Democracy

When a federal agency proposes to become the first reviewer of ethics complaints against its own lawyers, with no deadline, no guaranteed outcome and an explicit threat toward state bars that refuse to comply, does the resulting process constitute accountability or its structural opposite?

Sources

This report was compiled using information from the Federal Register, reporting by Bloomberg Law, Democracy Docket, Law & Crime, ABC News, and Slate, analysis from Above the Law, and legal commentary from Justia Verdict.

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