Proposed federal rule undermines state bar investigations of DOJ attorneys for misconduct and ethical violations
Law Forward submitted the following comments to the Federal Register regarding a recent proposed rule change by the U.S. Department of Justice which would undermine the ability of states to take disciplinary actions against federal DOJ employees. Over 1 million comments to the record were filed on this controversial matter.
April 6, 2026
Robert Hinchman, Senior Counsel
Office of Legal Policy
US Department of Justice
Submitted electronically via www.regulations.gov
Re: Review of State Bar Complaints and Allegations Against Department of Justice
Attorneys; Docket No. OAG199, AG Order No. 5563-2026-A
Dear Mr. Hinchman,
On behalf of Law Forward, a nonprofit, nonpartisan organization dedicated to advancing principles of democracy in Wisconsin, we write to express our objections to the United States Department of Justice’s (DOJ) proposed rule change to allow DOJ to interfere with, and potentially indefinitely delay, state bar investigations of current and former DOJ attorneys for misconduct or ethical violations. This proposal plainly violates federal law, which is reason enough to block adoption of the rule. But even more egregiously, the proposal directly undermines foundational national principles, threatening the integrity of and public faith in DOJ and our legal system more broadly.
DOJ’s Proposed Rule Change Violates Federal Law
Through their work, attorneys uphold and protect fundamental principles, including due process and the rule of law. Holding attorneys to high ethical standards is essential to preserving such fundamental principles. This is especially true for government attorneys, including DOJ attorneys, who are public servants.
Congress agrees. Since 1999, the McDade Amendment has provided that government attorneys “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.” Furthermore, the US Attorney General “shall make and amend rules of the [DOJ] to assure compliance.” 28 U.S.C. § 530B.
The proposed rule change does not expressly say that DOJ attorneys would be exempt from state laws and rules or federal courts’ local rules. But it does give DOJ the exclusive right to review and investigate state ethics complaints made against DOJ attorneys, the right to request that a state bar disciplinary body suspend its investigation until DOJ completes its review, and the mandate to take action against any state bar authority that refuses to suspend its investigation to prevent it from interfering with DOJ’s review.
At a time when DOJ has admitted openly to violating more than 50 court orders in the District of New Jersey¹ alone, it is no stretch to see this proposed rule for what it is: an intimidation tactic designed to discourage state bars from holding federal lawyers accountable. And because the rule provides no timeline for DOJ’s review, it would permit DOJ to significantly, if not indefinitely, delay state ethics proceedings. This proposed rule does not meet the congressional mandate to “assure compliance” with the requirement that DOJ attorneys are subject to the state and local ethics rules of the states in which they practice.
Accountability Checks Government Power
This year the United States will celebrate the 250th anniversary of the signing of the Declaration of Independence, the document that articulated the inherent rights and grievances justifying revolution and galvanized a nascent nation. The Declaration makes plain the foundational principle upon which our nation continues to operate; that is, government power is derived from, and must always be accountable to, the people.
Drafted with the principles of the Declaration of Independence in mind, the US Constitution ensures government accountability to the people through several mechanisms, including federalism (dividing government power between a central national government and state governments) and separation of powers among three branches of government (executive, legislative, and judicial).² The proposed rule change subverts both mechanisms.
States license, regulate, and discipline attorneys. This has always been the case in the United States. The US Supreme Court has said: “Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia …. The States prescribe the qualifications for admission to practice and the standards of professional conduct. They also are responsible for the discipline of lawyers.” Leis v. Flynt, 439 U.S. 438, 442 (1979). And within each state, attorney licensing, regulation, and discipline fall within the purview of the judicial branch. Attorneys are officers of the courts in which they practice. DOJ is a federal executive-branch agency. Its interference in state-level judicially supervised attorney-disciplinary proceedings violates both federalism and the separation of powers and thereby weakens (and potentially destroys) the accountability protections afforded by both principles. Moreover, it is broadly recognized as best practice that investigations of misconduct, in any professional field, be conducted by third-party agencies to preserve independence and the integrity of the investigation. With this rule change, DOJ proposes to ignore this best practice by not merely taking part in, but rather taking the lead in investigating misconduct allegations made against its own employees.
Each state must be allowed to continue holding all attorneys practicing within their courts, including federal government lawyers, accountable and subject to high ethical standards. This is consistent with both federal law and foundational principles of good governance, and it is essential for preserving the integrity of and public faith in the US legal system.
Law Forward opposes the changes articulated in Docket No. OAG199, AG Order No.5563-2026-A and requests that DOJ not proceed with adopting the rule.
Sincerely,
Law Forward
Jeffrey A. Mandell
President and General Counsel
Rachel E. Snyder
Policy Counsel