In what highly respected legal ethics scholar Stephen Gillers has called “a DOJ powergrab,” last week the Department of Justice proposed a new federal regulation to grant Attorney General Pam Bondi the right to unilaterally interfere with state bar ethics investigations into current and former government lawyers. The rule is contrary to established law and should not survive scrutiny, but, as Joe Patrice has eloquently stated, “like a lot of this Justice Department’s shenanigans, the rule wasn’t really intended to hold up under scrutiny, it just needed to assert a big, splashy threat that might silence anyone who doesn’t want to have a protracted fight with the Department of Justice.” Go here for Patrice’s thoughtful analysis.
Aside from the fact that the Justice Department has zero credibility when it says it would conduct a serious investigation regarding the conduct of any of its own lawyers, the proposed rule goes against the so-called “McDade Amendment” (28 U.S.C. § 530B), which states that government 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.” Congress passed this provision specifically because DOJ tried to exempt its lawyers from state ethics rules years ago.
For more on this story, check out the ABA Journal and The Hill. For a video comment, check out the YouTube channel "Legal Eagle" here.
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