R Street’s Comment on DOJ Request for Information on State Bar Complaints Against DOJ Attorneys
April 6, 2026
Todd Blanche, Acting Attorney General
U.S. Department of Justice
Office of the Attorney General
950 Pennsylvania Ave NW
Washington, DC 20530
Submitted electronically via regulations.gov
Re: Comment on DOJ Proposed Rule, Docket No. OAG199, AG Order No. 6653-2026-A
Comments of the R Street Institute in Request for Information on Review of State Bar Complaints and Allegations Against Department of Justice Attorneys
We submit this comment in opposition to the Department of Justice’s (DOJ, Department) proposed rule that would grant the Attorney General (AG) the right to review—and effectively delay—state bar disciplinary proceedings against current and former DOJ attorneys. While we share the Department’s concern about the potential for political weaponization of state bar complaints, this rule would create a far more serious problem than the one it seeks to solve.[1] We urge the Department to proceed cautiously and to answer to significant federalism, separation of powers, and institutional integrity concerns before moving forward with this rule.
The rule creates a federal screening mechanism in front of state disciplinary systems that have long exercised independent authority over lawyers admitted in their jurisdictions.[2] Nonetheless, the DOJ says this proposal does not raise federalism concerns because it does not change the substance of state ethics rules. While that is true, delaying or suspending state investigations at the AG’s request changes how and when states can exercise their disciplinary authority over members of their own bars, potentially exempting DOJ lawyers from true enforcement of state ethics rules. As the U.S. Supreme Court has noted, each state has “an extremely important interest in maintaining and assuring the professional conduct of the attorneys it licenses.”[3] The proposed rule would place state authority at the discretion of a single federal official, the AG, who happens to serve as the direct supervisor of the very attorneys that would be under investigation.[4]
This, of course, is not a new issue. In the 1990s, Congress confronted a similar debate over the ethical accountability of federal prosecutors after the DOJ took the position that state bar rules could not fully control federal attorneys acting in the course of their duties.[5] The controversy centered in significant part on whether federal prosecutors had to comply with state professional-conduct rules, in particular rules governing contact with represented parties.[6] Congress answered that question in 1998 by enacting the McDade-Murtha Amendment, which reaffirmed that federal government attorneys remain subject to state laws and rules “to the same extent and in the same manner as other attorneys in that State.”[7] This makes sense, as federal attorneys generally enter practice through state-based licensure, given that there is no general standalone federal bar exam or nationwide federal law license.[8] Congress’s purpose in enacting McDade-Murtha was to make clear that an attorney who happens to work for the federal government should not be held to lower expectations than, or allowed procedural protections unavailable to, any other attorney licensed in the same state.
In fact, the DOJ attorney-misconduct review is already unusually internal as compared to other federal agencies. By regulation, the Office of the Inspector General (OIG) generally does not investigate allegations involving DOJ attorneys when the conduct relates to litigating, investigating, or providing legal advice.[9] This has been left to the Office of Professional Responsibility (OPR)—and the Professional Misconduct Review Unit that reviews OPR’s findings—which reports directly to the AG.[10] The OIG has previously argued that this already weakens independent oversight and public confidence because misconduct by DOJ attorneys is shielded from independent review.[11] The proposed rule would now extend that same dynamic to external discipline, effectively making the AG the gatekeeper for every accountability mechanism available to hold DOJ attorneys to professional standards.
Public trust is integral to upholding the DOJ’s authority, alongside its legal basis. Federal prosecutors have enormous power to damage reputations and take away liberty. People only accept the legitimacy of that power when they see it used appropriately and backed by meaningful accountability. At a time when the DOJ is already under heightened scrutiny, whether fairly or unfairly, reducing oversight is the wrong response.[12] Doing so would risk reinforcing the perception that the DOJ is insulating its attorneys from independent review, and placing its attorneys above the laws and rules that other attorneys are subject to across the country.
As a former prosecutor, I have seen how much this work depends on strong public trust. That trust has weakened for many reasons, including the refusal to enforce the law in some jurisdictions, misconduct in others, and broader public skepticism toward legal institutions. The DOJ is not solely responsible for that decline; however, the enormous power wielded by federal prosecutors also comes with great responsibility. The Department should therefore hold itself to a higher standard and avoid changes that could further distance its attorneys from independent review.
Whatever its intent, the proposed rule is likely to be interpreted as a way for DOJ attorneys to avoid state oversight and discipline, a procedural protection unavailable to state lawyers. The Department should consider not only that perception, but also the risk that future administrations could use it to impede legitimate oversight. If the DOJ’s objective is to reduce politically motivated complaints, it should pursue narrower safeguards that preserve independent review rather than a rule that delays it. For example, the DOJ could implement automatic expirations for requested pauses with limited exceptions. Then, a neutral authority could review the evidence and determine whether a continued pause is appropriate. This would strike a balance between protecting federal investigations and allowing legitimate oversight.
We respectfully request that the Department reconsider the proposal in light of the federalism interests at stake, the structure Congress adopted in the McDade-Murtha Amendment (28 U.S.C. § 530B), and the risks of further centralizing attorney-discipline review inside the DOJ.
Lisel Petis
Policy Director
Criminal Justice and Civil Liberties
R Street Institute
lpetis@rstreet.org
[1] “Review of State Bar Complainst and Allegations Against Department of Justice Atorneys,” Department of Justice (March 5, 2026). https://www.federalregister.gov/documents/2026/03/05/2026-04390/review-of-state-bar-complaints-and-allegations-against-department-of-justice-attorneys.
[2] “Resolution 1-2026 Reaffirming the Authority of Jurisdictions’ Highest Courts to Regulate the Professional Conduct of All Attorneys Authorized to Practice in their Jurisdiction,” Conference of Chief Judges (March 20, 2026). https://ccj.ncsc.org/resources-courts/reaffirming-authority-jurisdictions-highest-courts-regulate-professional-conduct
[3] Middlesex Ethics Comm. v. Garden State Bar Assn, 457 U.S. 423 (1982). https://caselaw.findlaw.com/court/us-supreme-court/457/423.html.
[4] “Organization, Mission and Functions Manual,” Office of Professional Responsibility, last accessed April 1, 2026. https://www.justice.gov/doj/office-professional-responsibility.
[5] Rory K. Little, “Who Should Regulate the Ethics of Federal Prosecutors?” US Hastings College of the Law, 1996. https://repository.uclawsf.edu/cgi/viewcontent.cgi?article=1428&context=faculty_scholarship.
[6] Ibid.
[7] McDade-Murtha Amendment, 28 U.S.C. § 530B (1998). https://www.law.cornell.edu/uscode/text/28/530B.
[8] John Okray, “Attorney Admission Practices in the U.S. Federal Courts,” Federal Bar Association, September 2016. https://www.fedbar.org/wp-content/uploads/2016/09/AttorneyAdmissions-pdf-2.pdf.
[9] Office of the Inspector General, “Top Management and Performance Challenges Facing the Department of Justice—2024,” U.S. Department of Justice, Oct. 10, 2024. https://oig.justice.gov/sites/default/files/2024-11/TMPC-2024.pdf.
[10] Office of Professional Responsibility, “Frequently Asked Questions,” Department of Justice, last accessed April 1, 2026. https://www.justice.gov/opr/frequently-asked-questions
[11] Office of the Inspector General. https://oig.justice.gov/sites/default/files/2024-11/TMPC-2024.pdf.
[12] Devlin Barrett, “Justice Dept. Watchdog Has Gone Silent, Lawyers for Whistle-Blower Say,” The New York Times, March 30, 2026. https://www.nytimes.com/2026/03/30/us/politics/trump-administration-doj-watchdog-reuveni.html.