Trump DOJ Pushes to Sideline State Bar Ethics Investigations (3)

The Justice Department is seeking to empower Attorney General Pam Bondi to suspend state bar ethics investigations into current and former DOJ lawyers—a step outside attorneys quickly criticized as an illegal intervention into state-run processes.

The proposed regulation, posted in the Federal Register Wednesday, would aim to halt state-level ethics proceedings against DOJ lawyers while the department conducts its own review, which would diminish local bar associations’ power. It comes as Bondi, members of her leadership team, and prosecutors involved in immigration matters face complaints probing DOJ misconduct in states where they’re licensed to practice law.

The department unveiled the unexpected policy by saying the change is necessary in light of the “weaponization” of the bar complaint process.

If finalized after a public comment period, “whenever a third party files a bar complaint alleging that a current or former Department attorney violated an ethics rule while engaging in that attorney’s duties for the Department, or whenever bar disciplinary authorities open an investigation into such allegations,” the attorney general “will have the right to review the complaint and the allegations in the first instance,” the proposal states.

An attorney general who decides to exercise this right—or a designated official—will then notify the state bar agency and the lawyer facing the complaint and “request” that the disciplinary authorities pause the investigation until the review is completed.

If the DOJ finds no violation, that blocks the state from investigating the alleged infraction. And “should the relevant bar disciplinary authorities refuse the Attorney General’s request, the Department shall take appropriate action to prevent the bar disciplinary authorities from interfering with the Attorney General’s review of the allegations,” the proposed regulation states.

Hilary Gerzhoy, chair of the DC Bar rules of professional conduct review committee, said the proposal “is incredibly concerning.”

“It is inconsistent with all precedents, " Gerzhoy said. “The way that the DC bar disciplines lawyers is an independent process that happens in the DC Court of Appeals. It is not a federal process.”

Although some attorneys predicted state disciplinary bodies would simply ignore the department’s attempt to intervene, Gerzhoy said she expects state bars to issue statements that “will make clear that DOJ does not have standing to promulgate this new rule.”

By moving to establish a new attorney general-run review process for ethics complaints, DOJ would be setting up a potentially duplicative system for handling allegations of employee violations. The department’s Office of Professional Responsibility is already tasked with reviewing complaints of prosecutors or other lawyers breaching their professional duties and can make recommendations to another DOJ internal disciplinary body.

Under the new policy, an attorney general who wishes to halt a state bar proceeding would hand OPR the additional responsibility of reviewing that complaint. Citing the “troubling” recent spate of state bar complaints from “political activists” against Deputy Attorney General Todd Blanche, former senior official Emil Bove, and DOJ pardon attorney Ed Martin, the proposal notes that some state bar authorities have launched investigations into department personnel without informing OPR.

“This is about DOJ interfering with the states’ licensing authority of lawyers for the political benefit of this administration” and “DOJ attempting to identify those who complain about DOJ attorneys and potentially target them,” said Kevin Owen, a partner at Gilbert Employment Law who represents whistleblowers and others raising allegations of department wrongdoing. “This is going to have a chilling effect on appropriate complaints about DOJ attorney misconduct.”

Bondi Complaint

The most high-profile state ethics complaints against a Trump official came last year when opponents targeted Bondi’s Florida law license.

Law professors, lawyers, and former judges demanded that the Florida Bar bring an ethics investigation into Bondi for allegedly compelling federal prosecutors to violate defendants’ due process rights, using the unlawful deportation of Kilmar Abrego Garcia as an example.

State regulators rejected that request, saying they couldn’t investigate a sitting federal official and claims against Bondi would have to wait until she left her federal post. The Florida Supreme Court last October dismissed a petition seeking to force the investigation.

Lauren Stiller Rikleen, executive director for Lawyers Defending American Democracy and one of the signatories to the Bondi ethics complaint, said that the DOJ’s professional responsibility office that would conduct AG-initiated reviews has suffered significant attrition.

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, Rikleen added.

“We have an entire infrastructure dedicated to providing standards of professional conduct. And what they are proposing to do is take an entire category of lawyers—those who ever did work for” DOJ — out, she said.