DOJ rule would preempt state bar counsel from investigating misconduct

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Maryland’s legal community is opposing a proposed U.S. Department of Justice rule that would prevent the state bar counsel from investigating allegations of misconduct by DOJ attorneys.

Then-Attorney General Pam Bondi proposed in late February a rule under which the Justice Department could “request” that the state bar counsels pause investigations into its current or former attorneys, and allow the matter to be handled internally first.

If a state refuses the request, the department could take “appropriate action,” which is not defined. The DOJ would consider a state disciplinary body to be “interfering” if it conducts a parallel investigation. The rule establishes no time limit for the internal review.

The rule’s preamble — but not the regulatory text — asserts that “the Attorney General retains the discretion to displace State bar enforcement and to create an entirely Federal enforcement mechanism, or to displace State bar enforcement in part when it is inconsistent with the Federal Government’s determinations regarding the regulation of Federal attorneys.”

The proposal is facing widespread condemnation by lawyers who note that attorney discipline is a state function and that Justice Department attorneys have to follow the same state ethics rules as others. Before the public comment period closed Monday, the rule received nearly 48,000 comments.

“This is a rule-of-law issue,” Maryland Bar Counsel Tom DeGonia said in an interview Wednesday. The proposal, he said, “undermines accountability and the rule of law for the regulation of attorneys.”

Regarding the assertion that the DOJ could “displace” the Attorney Grievance Commission, DeGonia said, “It is well-established in both state and federal law that the Department of Justice does not have that authority.”

He said it’s unclear what “appropriate action” means but said, “the only action that makes sense would be some sort of court action that the department would take against the regulating authority.”

The DOJ did not respond to a request for comment.

The rule would apply to complaints filed with the state Attorney Grievance Commission, alleging violations of the Maryland Attorneys’ Rules of Professional Conduct.

The rule comes as the DOJ, during President Donald Trump‘s second term, has abandoned its traditional independence from the president. Many department lawyers have quit rather than obey orders they consider illegal or unethical.

In Minnesota, some resigned after being asked to investigate the wife of a woman shot to death by federal immigration agents. In New York, others departed after being ordered to drop criminal charges against then-Mayor Eric Adams.

Bondi proposed the rule just days after a Minnesota federal judge on Feb. 18 held a DOJ lawyer in civil contempt for “flagrant disobedience of court orders,” CNN reported. It was the first court-ordered sanction of a DOJ lawyer during Trump’s second term.

The National Association of Criminal Defense Lawyers called the rule “impunity with paperwork,” and said the Justice Department is currently facing state bar complaints.

Among those publicly opposing the rule are the American Bar Association, the Maryland State Bar Association, the Office of the Maryland Attorney General, Maryland Legal Aid, state Supreme Court Chief Justice Matthew Fader, and law firms Gallagher and Goodell Devries. A spokesperson for the state judiciary said he would not be able to comment by the time of publication.

“The DOJ should not be permitted to exempt its attorneys from ethical standards that govern all other lawyers in the United States,” states the MSBA’s letter, which was joined by 19 law firms and organizations, plus 172 individual attorneys. “While the DOJ may maintain internal procedures for ensuring attorney accountability, it has no constitutional or statutory authority to supersede the state’s independent authority.”

The National Organization of Bar Counsel, of which DeGonia is a member, wrote in a letter that the idea is illegal because it interferes with states’ authority to discipline lawyers. The Conference of Chief Justices, of which Maryland Chief Justice Matthew Fader is a member, opposed it for similar reasons.

A coalition of Democratic state attorneys general, including Anthony Brown of Maryland, also wrote in opposition.

“Allowing the DOJ to insulate employees accused of professional misconduct would never be appropriate,” they wrote, “but it is particularly improper at a time when federal courts across the country have been increasingly vocal regarding departures from the professional norms previously upheld by the DOJ.”