DOJ Proposal to Centralize Ethics Oversight of Federal Prosecutors

The Justice Department has issued a proposed regulation that would let the Attorney General request an initial review of any state-bar complaint against current or former federal prosecutors for conduct performed while on DOJ duty. If the Attorney General assumes review, the internal Office of Professional Responsibility would handle the case, potentially delaying or precluding state-bar action.

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State bar associations traditionally discipline attorneys, including federal prosecutors, under the 1998 McDade-Murtha Amendment, which requires prosecutors to follow state professional-responsibility rules. Earlier attempts by the Bush and Clinton administrations to exempt prosecutors, such as the “Reno Rule,” were blocked by Congress.

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The proposal is being advanced by Acting Attorney General Todd Blanche. Critics and analysts include ethics counsel Michael Frisch (Georgetown), law professor Susan Carle (American University), and director Matthew Cavedon (Cato Institute). Supporting groups range from America First Legal to 14 Republican state attorneys general.

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The DOJ says political activists have weaponized bar complaints, chilling zealous advocacy. It argues internal review protects attorneys from “lawfare” and preserves the Attorney General’s authority. America First Legal urges exclusive DOJ control over ethics complaints.

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Legal scholars and state officials warn the rule “clearly violates” the McDade-Murtha Amendment, undermining federalism. Susan Carle calls it “federal overreach.” The American Bar Association and Democratic AGs say it erodes state disciplinary authority. Cavedon notes prosecutors are among the least accountable.

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The DOJ maintains the rule is lawful; critics cite the 1998 amendment as prohibiting such federal preemption. No court ruling yet resolves the dispute.

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• “as part of a broad attack on the rule of law and … on the concept that lawyers should be ethically accountable for their actions. I think there's a great concern that these attempts to avoid accountability will de-legitimize the processes that have traditionally regulated lawyers.” — Michael Frisch, Georgetown University Law Center

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• “It's an unfortunate byproduct of the times we live in that everything seems politicized, from religion to politics to state bar regulation," Frisch said.” — Michael Frisch

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• “The rule offers a more uniform approach to attorney ethics that also balances the States' interests in maintaining regulatory authority over attorneys practicing in our courts,” — 14 Republican state attorneys general

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• “If DOJ is dissatisfied with Congress's decision to require DOJ lawyers to be members of state bars, it should take that up with Congress,” — Judges, Supreme Court of Georgia

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• “degrade, destroy and remove safeguards that are intended to be independent checks on abuses of power.” — Chris Swartz, Democracy Defenders Fund

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If adopted, the rule would shift disciplinary authority from state bars to the DOJ, likely prompting lawsuits invoking the McDade-Murtha Amendment. Blanche plans to file the final rule for comment; courts may later assess its legality.

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