The Legal Ethics Issue That Will Never Die

There has been a lot of reporting and commentary recently about a Notice of Proposed Rulemaking (NPRM) from the Department of Justice, the main thrust of which is to interpose the DOJ into the process of disciplining DOJ lawyers for violations of the rules of professional conduct. Unlike some of the more bumptious actions of Pam Bondi’s DOJ, this NPRM actually looks reasonable well thought out and put together by, you know, actual lawyers in the DOJ. For one thing, it’s actually published in the Federal Register as a formal rulemaking. It’s also, in some ways, less aggressive than it might have been if it had simply been dashed off by Boris Epshteyn, like the law firm executive orders.

Bottom line up front (BLUF): I think this is mostly for show and won’t change much. However, there has been a lot of discussion about it that exposes some confusion about the issues at stake.

This is nothing new. In fact, the resistance of the Justice Department to discipline of DOJ lawyers by state judicial-branch disciplinary agencies (commonly referred to by lawyers as “the bar”) is apparently a legal ethics zombie that refuses to die.

When I first came into this area as a lawyer and then as a graduate student in the mid to late 1990s, the conflict between the DOJ and state rules of professional conduct was already old news, having been aired out during the George H.W. Bush and Clinton administrations, but going back even farther to an OLC opinion in 1980, during the Carter administration, which concluded that “[s]tate bar associations may not, consistent with the Supremacy Clause, impose sanctions on a government attorney who has acted pursuant to his federal law enforcement responsibilities.” One theme of this history is that Attorneys General of both parties1 uniformly resent what they take to be the meddling of state disciplinary authorities in the functioning of the DOJ and the conduct of its lawyers. Some of the notable battles in this war include the following, all of which I will describe only very briefly, because it’s possible to get way down in the weeds very quickly, both in the application of the rule itself and in the federalism and separation of powers issues involve.2

Hammad: The conventional retelling of this story often starts with a Second Circuit case called United States v. Hammad, 846 F.2d 854 (2d Cir.), modified, 858 F.2d 834 (2d Cir. 1988), aff’d, 902 F.2d 1062 (2d Cir.), cert. denied, 498 U.S. 871 (1990). Hammad involved application of DR 7-104(A)(1) of the Model Code of Professional Responsibility, the predecessor of Rule 4.2 of the Model Rules of Professional Conduct, generally referred to as the “anti-contact” rule. Both the Model Code and the Model Rules prohibit communication by a lawyer with a represented non-client, without the consent of the other person’s lawyer, unless the communication is authorized by law. Hammad said this rule applied to federal prosecutors who had wired up a co-conspirator and sent him to talk with the target of a fraud investigation, whom the prosecutors knew was represented by counsel in the matter. One natural reading of the “authorized by law” exception is that if the communication would not violate the Sixth Amendment rights of the target of the investigation. (That’s the position taken in the 1980 OLC opinion.) If formal charges had not been instituted (that is, it’s a pre-indictment contact), the communication would be authorized by law.

Nope, said the Second Circuit: The rule is not coextensive with the Sixth Amendment, and “in some instances a government prosecutor may overstep the already broad powers of his office, and in so doing, violate the ethical precepts of DR 7-104(A)(1) (858 F.2d at 839-40). That means an AUSA may not have a communication through the medium of a cooperating witness or undercover law enforcement officer (see Rule 8.4(a), prohibiting violating a rule “through the acts of another”) if the AUSA knows the target of the investigation has retained counsel. This result freaked out the DOJ and led to . . .

Thornburgh Memo: While the appeal in Hammad was pending, Attorney General Dick Thornburgh issued a memo to all DOJ lawyers. There is a very good discussion of this episode, along with a reprint of the Thornburgh Memo, in In re Doe, 801 F. Supp. 478 (D.N.M. 1992). The Thornburgh Memo asserted a conflict preemption theory. Under the Supremacy Clause, if enforcement of state rules of professional conduct impedes federal officers in carrying out their official duties, the federal interest is paramount. “[I]n the rare instance where an actual conflict arises,” the Memo concluded, “the Supremacy Clause forbids the states from regulating the attorneys’ conduct in a manner inconsistent with their federal responsibilities, as determined by federal law and the Attorney General.”

The district court in Doe was having none of this. The court saw the reliance by an AUSA on the Thornburgh Memo in opposition to a grievance proceeding by the New Mexico Disciplinary Board as an arrogant assertion of the claim that federal government lawyers are above the law:

[T]he insolence with which the Government promotes this as official policy irresponsibly compromises the very trust which empowers it to act. It falls to this Court to disabuse the Government of its novel self-conceived notion that Government lawyers, unlike any other lawyer, may act unethically.

Ouch. The district court remanded the proceeding to the New Mexico Disciplinary Board, holding that the government’s removal under 28 USC § 1442 was inappropriate because a disciplinary action against a lawyer was not a “civil action or criminal prosecution,” but is instead a regulatory function that has been “consistently left in state hands.” (801 F. Supp. at 483.) The federal government sought to enjoin the state disciplinary proceeding but the D.C. Circuit dismissed the government’s action for an injunction based on lack of personal jurisdiction over the head of the state disciplinary authority. See United States v. Ferrara, 847 F. Supp. 964 (D.D.C. 1993), aff’d on other grounds, 54 F.3d 825 (D.C. Cir. 1995).

On the conflict preemption / Supremacy Clause issue, the court concluded that there is no conflict between state regulation and federal duties, because a prosecutor has a duty to investigate criminal activity in an ethical manner, and the prohibition on communicating with represented parties is “a fundamental principle of both state and federal law, is incorporated into federal law through the local rules, and has its roots in our common law tradition.” (801 F. Supp. at 485.) As for the DOJ’s interpretive authority, the court says:

The idea of placing the discretion for a rule’s interpretation and enforcement solely in the hands of those governed by it not only renders the rule meaningless, but the notion of such an idea coming from the country’s highest law enforcement official displays an arrogant disregard for and irresponsibly undermines ethics in the legal profession.

Ouch again. The court concludes with a nice flourish that is very much applicable to the DOJ today:

In holding to ethical standards, an attorney for the Government cannot be a mere minion of the Government. . . . [W]hen lawyers subordinate themselves to the Government and conform their conduct to governmental policy, they are no longer free, but are reduced to vassals as in a totalitarian state.

Yep, that’s what the court said . . . in 1992. Like I said, these issues have been kicking around for a long time.

Reno Rules: The Clinton administration didn’t like state disciplinary agencies looking over the shoulder of federal prosecutors any more than the Bush administration did. Rather than rely on a determination by the AG, however, it promulgated rules known as the Reno Rules, 28 CFR § 77.10(a). The rules were challenged in the course of a civil qui tam action in United States ex rel. O’Keefe v. McDonnell Douglas Corp., 132 F.3d 1252 (8th Cir. 1998). Government lawyers were talking to employees of the defendant, McDonnell Douglas, in violation of Missouri’s version of Rule 4.2. The Reno Rules, however, would have defined the scope of prohibited communications with an organizational party to those members of the corporate control group; alternatively, the communications would be deemed authorized by law. Nope, said the Eighth Circuit: the Attorney General did not have the statutory authority to issue the rules.

McDade Amendment: Before the Eighth Circuit case invalidating the Reno Rules as ultra vires, Congress had started debating legislation to clear up the uncertainties surrounding the application of state law, and the jurisdiction of state disciplinary authorities, with respect to federal government lawyers. As part of one of those gigantic omnibus appropriations bills, Congress included what has become known as the McDade Amendment, now codified at 28 USC § 530B. It provides:

(a) An attorney for the Government shall be subject to State laws and rules, and local Federal court 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. . . .

Keep an eye on the highlighted language, because it is key to the theory of the Bondi NPRM.

I teach the arc of this issue from Hammad to the McDade Amendment fairly quickly, as part of the class on Rule 4.2. Until recently I’ve been saying the controversy is in the past and it was settled by the McDade Amendment. (Also, courts have pretty much distinguished Hammad away based on the peculiar facts of that case.) But this recent NPRM has brought back this zombie issue of legal ethics.

Before getting into the recent NPRM, it’s important to distinguish two questions that often get run together in these discussions: authority to impose disciplinary sanctions and the law to be applied. This is important, because one of the arguments in the recent NPRM is that the McDade Amendment addresses only the content of the applicable rules, not the appropriate institutional mechanism for enforcing them. The nub of any conflict arising from this proposed rule will be an effort by a state disciplinary authority to conduct an investigation and potentially impose sanctions on a DOJ lawyer for violation of the rules, not so much the substantive rule to be applied (which anyway doesn’t vary that much, in most cases, from one jurisdiction to another).

Both issues are addressed in ABA Model Rule 8.5 (discussed on p. 17 of the NPRM):

(a) Disciplinary Authority. A lawyer admitted to practice in this jurisdiction is subject to the disciplinary authority of this jurisdiction, regardless of where the lawyer’s conduct occurs. A lawyer not admitted in this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this jurisdiction and another jurisdiction for the same conduct.

(b) Choice of Law. In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be as follows:

(1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in which the tribunal sits, unless the rules of the tribunal provide otherwise; and

(2) for any other conduct, the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the predominant effect of the lawyer’s conduct will occur.

Content of applicable law: Of the two issues, this is the least affected by the NPRM. Under Model Rule 8.5(b)(1), the conduct of government lawyers appearing in litigated matters is subject to the rules of professional conduct of the jurisdiction in which the tribunal sits. That goes for federal as well as state courts. The Doe court, in the course of determining that there is no conflict between state and federal law in the application of state rules of professional conduct to the activities of federal government lawyers, observed that state rules are often incorporated into federal law through local court rules (801 F. Supp. at 484.) Every now and then a federal court adopts the ABA Model Rules and not the forum state’s version of the rules, but that’s pretty unusual. Thus, while choice-of-law questions can sometimes be complicated, it’s easy in litigated matters – the rules are those of the jurisdiction in which the tribunal sits – and in other matters it usually can be determined relatively easily where the conduct had its predominant effect (Model Rule 8.5(b)(2)).

That’s how the analysis would go under the Model Rules and versions adopted by the states. However, there are implementing regulations, enacted pursuant to the McDade Amendment, addressing the provision of that legislation subjecting attorneys for the government to state laws and rules. The regs kinda sorta track Model Rule 8.5. Here is the basic choice-of-law provision for DOJ lawyers following the McDade Amendment:

In all criminal investigations and prosecutions, in all civil investigations and litigation (affirmative and defensive), and in all civil law enforcement investigations and proceedings, attorneys for the government shall conform their conduct and activities to the state rules and laws, and federal local court 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, as these terms are defined in § 77.2 of this part.

28 CFR § 77.3. I say “kinda sorta” because the highlighted language seems like it blends the standards of where the tribunal sits (Model Rule 8.5(b)(1)) and where the conduct has its predominant effect (Model Rule 8.5(b)(2)). Except that . . . there’s a wrinkle in the defined terms in 28 CFR § 77.2 (I love reading regs, don’t you?), which is that the highlighted phrase refers, where there is no case pending, to the rules of ethical conduct that would be applied by the attorney’s state of licensure. See § 77.2(j)(1)(ii). And all of this waffling is going to be important, because the proposed rule takes advantage of an ambiguity in the text of the McDade Amendment between authority to discipline and choice of law.

Who imposes sanctions and by what procedure: Model Rule 8.5(a) provides that a lawyer remains subject to discipline in the jurisdiction in which that lawyer was admitted to practice. It’s relatively easy to waive into the D.C. Bar, and the Justice Department requires only that lawyers be an active member in good standing of the bar of any U.S. jurisdiction. The District of Columbia has not adopted ABA Model Rule 5.5(b), which prohibits a lawyer not admitted in the jurisdiction from establishing an office or other systematic and continuous presence for the practice of law in the District. Thus, DOJ lawyers are theoretically subject to the disciplinary authority of all U.S. jurisdictions, if they are admitted to practice there. As a matter of constitutional law, this is an aspect of the inherent authority of state judiciaries to regulate the conduct of lawyers licensed to practice in that jurisdiction.

The DOJ also has its own internal disciplinary body, called the Office of Professional Responsibility (OPR). Many of use learned about the workings of this institution as a result of the investigation it conducted into the conduct of DOJ attorneys John Yoo and Jay Bybee, who had provided legal advice to the president on interrogation policy – the notorious “torture memos” – following the 9/11 attacks. The OPR Report, and the subsequent review of the OPR’s findings by Associate Deputy Attorney General David Margolis, are useful references for understanding the internal DOJ procedures for investigating allegations of professional misconduct. To briefly summarize, the OPR has jurisdiction to investigate allegations of misconduct against DOJ attorneys and make a report and recommendation to responsible senior officials in the Department. See 28 CFR § 0.39(a). The substantive standards to be applied are:

OPR finds professional misconduct when an attorney intentionally violates or acts in reckless disregard of a known, unambiguous obligation imposed by law, rule of professional conduct, or Department regulation or policy.

As for the “rule of professional conduct” language, see all the stuff above, particularly the discussion of 28 CFR § 77.3.

The primary intention of the NPRM seems to be to give authorization to the Attorney General or a designated subordinate to interject herself into any state proceeding and request that it be stayed – presumably pending the OPR conducting its own investigation. The rulemaking states:

[W]henever 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 without a complaint having been filed, the Attorney General will have the right to review the complaint and the allegations in the first instance. The Attorney General or her designee will notify the applicable State bar disciplinary authorities and the affected lawyer whether she intends to exercise this right, and will request that the relevant State bar disciplinary authorities suspend any investigative steps that require information or other participation from a Department attorney in response to the allegations pending completion of her review.

Unlike the litigation discussed in the Doe case, where the DOJ sought an injunction against the pending New Mexico disciplinary proceedings, the rulemaking does not explicitly contemplate an effort by the DOJ to compel state disciplinary authorities to stand down. Reading between the lines, however, I think the NPRM is trying to set up an argument that the federal government’s regulatory procedures preempt discipline by state authorities. It notes that the McDade Amendment is silent on enforcement mechanisms and that the regs promulgated pursuant to that statute “left in place the existing structure for the enforcement of ethical rules whether by the Department, the State bar disciplinary authorities, or the courts” (p. 5).

So here’s the kicker: The point of the rulemaking is to assert that the McDade Amendment applied only to the substantive standards to be applied and was not intended to oust the OPR and other offices within DOJ from enforcing the rules of professional conduct. Here’s an important paragraph, and note the missing language I inserted in brackets:

The McDade Amendment provides limited authority for State bars to regulate Department lawyers by requiring those attorneys to conform to the same substantive standards of conduct as non-Federal attorneys in the States in which they are practicing, where compliance with the State rules does not interfere or conflict with Federal law. . . . The Department has concluded that this language requires that Department attorneys be subject to the same substantive State ethics rules as every other attorney in that State, but that because Congress did not expressly confer to the States enforcement authority, the statute otherwise preserves the [exclusive] authority of the Attorney General to enforce those substantive standards.

Without the bracketed text, this wouldn’t be a big deal. The DOJ already has the authority to enforce the substantive standards set out in state rules of professional conduct. Bondi et al. would not be going through this process unless they were trying to set up the position that the DOJ’s internal enforcement process is exclusive. This reading is supported by a passage on the next page:

[The McDade Amendment] does not impose any limitations on how the Attorney General goes about structuring the regulatory system designed to accomplish this objective. The regulations could leave the responsibility for enforcing ethics rules up to the bar disciplinary authorities of the States, the Territories, and the District of Columbia. Alternatively, the regulations could establish a process wherein the Department assumes the responsibility for enforcing State ethics rules directly against Department attorneys (p. 11).

This makes it sound like it’s completely up to Pam Bondi to determine whether the bar disciplinary authorities of U.S. jurisdictions have responsibility for enforcing the rules of professional conduct of those jurisdictions. That’s bonkers. The jurisdictions have always, as a matter of state constitutional law, had the authority to enforce the rules of professional conduct with respect to lawyers licensed to practice in those jurisdictions. They do not depend on a conferral of power by Congress for this authority.

The overall tenor of the NPRM, however, is that the states have lost the trust of the Attorney General, by allowing their professional disciplinary processes to be “weaponized” by political activists, and that state regulators have taken these complaints seriously (p. 8). As a result, the AG just might have to take the punchbowl away from the party:

To date, the Attorney General has relied upon the State bar licensing authorities to enforce these substantive ethics standards. But 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 (pp. 12-13).

Can’t you imagine Pam Bondi saying, with a reproachful tone, “this is why y’all can’t have nice things”?

For all the bluster, the actual proposed rule (new § 77.5, set out on pp. 23-24 of the NPRM) only provides the AG or her designate the right to review any complaint and allegations made against DOJ attorneys. The OPR, acting at the designation of the AG, may request that the state disciplinary authorities stay the investigation pending its own investigation. The AG may also direct DOJ attorneys not to cooperate with state investigations (which may be dangerous for the attorneys involved). But there is nothing in here formally ousting state regulators, except for the following vague warning:

Should the relevant bar disciplinary authorities refuse the Attorney General’s request, the Department shall take appropriate action to enforce this regulation or to prevent the bar disciplinary authorities from interfering with the Attorney General’s review of the allegations.

As reported in the New York Times [gift link], Politico, and elsewhere, the D.C. Bar has initiated a grievance proceeding against Ed Martin, the former acting head of the District of Columbia U.S. Attorney’s Office, who had written a series of belligerent letters to Georgetown University threatening to withholding federal funding and to prohibit hiring students from Georgetown Law School because Georgetown was “teaching and promoting DEI,” without specifying what DEI was. To his great and everlasting credit, law school dean William Treanor wrote a forceful letter in response, in which he emphasized the First Amendment’s protection for academic freedom as well as Georgetown’s commitment as a Catholic and Jesuit institution. In response, Martin threatened the university’s tax-exempt status. For this, Martin was charged with violating his oath to support the constitution (a theory I’m quite dubious of, but that’s a subject for another post). In addition, though, Martin behaved obnoxiously in the course of the investigation, including having several impermissible ex parte contacts with the Chief Judge of the D.C. Court of Appeals, for which D.C. Bar counsel tacked on a second count of the complaint.

If the proposed DOJ rule is enacted, what will happen? Presumably Pam Bondi or a Department official she designates will notify the D.C. Bar that she would like to review the allegations against Martin. After that review, it’s a pretty fair assumption that she will also request that the D.C. Bar stay the investigation until the OPR has time to conduct its own investigation. Given that the OPR is under the authority of the Attorney General, and in light of the experience of the last 16 months or so with Department lawyers who do not demonstrate absolute fealty to the administration, it’s also a fair assumption that bupkes will happen internally. Nothing in the regs provides for tolling of the statute of limitations for initiating a disciplinary action, so Bondi might decide to simply run out the clock.

But let’s make things a bit spicy. Suppose the D.C. Bar’s Board of Professional Responsibility tells the AG to pound sand (which is what I expect would happen). Now what? I guess we’re back to Doe (“that will bring us back to Doe” – sorry), and a court will determine whether the DOJ’s authority to discipline its own lawyers somehow excludes the authority of state disciplinary authorities to impose their own sanctions on a lawyer admitted to practice in that jurisdiction. We’re getting to the outer limits of my fed courts and con law knowledge (not to mention nearing the end of a long post), so I may not be the best prognosticator here. Given the history of the efforts by the DOJ to exclude state disciplinary proceedings, however, I would be willing to bet that states will be able to act independently of the DOJ.

In the meantime, however, the new regs provide cover for jurisdictions unlike D.C. – say, Florida – that are looking for cover and a pretext to toss disciplinary grievances against DOJ lawyers in the round file. Not that these states need much cover. Florida, in particular, seems quite keen to protect Bondi and Lindsey Halligan, both of whom have had complaints filed against them in that state. That’s what I meant up front when I said this is mostly for show and won’t really change anything. Readers who are sharper on con law than I am (and that’s a lot of you – trust me) can correct me if I’m wrong about this and the new regs will provide the basis for some sort of injunctive relief against a jurisdiction like D.C. that actually pursues a disciplinary action against a lawyer like Ed Martin. For now, though, I’m going with “I don’t think so.”