WASHINGTON, D.C. — A proposed U.S. Department of Justice rule that would allow the attorney general to delay or suspend state bar investigations of DOJ attorneys is drawing increasing criticism from legal organizations and policy advocates, who warn the measure could weaken accountability for federal prosecutors and allow the department to police itself.
The proposed rule, published in the Federal Register on March 5, 2026, would give the attorney general a “right of first review” over ethics complaints filed against current or former DOJ attorneys. Under the proposal, state bar authorities would be required to pause their own investigations while the DOJ conducts an internal review.
Critics say the rule could sharply reduce independent oversight of government lawyers who wield enormous authority over people’s liberty, finances and reputations. They argue DOJ attorneys should be subject to the same ethical standards and disciplinary processes as every other licensed attorney.
The State Bar of California formally opposed the proposal in comments submitted April 6. State Bar Executive Director Laura Enderton-Speed and Chief Trial Counsel George Cardona argued the proposed amendments to 28 C.F.R. [Code of Federal Regulations] Part 77 are “unprecedented, unnecessary, inappropriate” and lack “both congressional and constitutional authority.”
The California bar joined comments filed by the National Organization of Bar Counsel, which represents attorney discipline agencies from more than 60 jurisdictions nationwide.
According to the State Bar, DOJ disciplinary measures are generally limited to employment consequences such as reprimand, suspension or termination and do not affect an attorney’s law license. Without action from an independent bar authority, the organization warned, a DOJ attorney removed for serious misconduct could still continue practicing law.
The State Bar also argued the proposal raises constitutional concerns. Its comments state the rule would violate separation of powers by allowing the attorney general, a member of the executive branch, sole discretion over when and how DOJ attorneys may be investigated, encroaching on authority traditionally shared by legislatures and courts.
The comments further contend the rule could violate equal protection principles by creating two classes of litigants: those whose opposing counsel may be freely investigated by state bars, and those facing DOJ attorneys who would receive special protection.
California’s bar, which handles about 21,000 disciplinary complaints annually, also warned that delays could undermine investigations through fading witness memories, lost evidence and the practical inability to pursue discipline after years of inaction.
Similar concerns were raised by the Cato Institute in an analysis titled “Review of State Bar Complaints and Allegations Against DOJ Attorneys.” Cato argued the proposal would formalize a system in which state bars must stand aside while the DOJ’s Office of Professional Responsibility reviews complaints internally.
The group cited the McDade-Murtha Amendment, a federal law requiring government attorneys to comply with state laws and ethical rules “to the same extent and in the same manner” as other lawyers. Critics say the DOJ proposal conflicts with that principle by subjecting federal prosecutors to a separate review process unavailable to private attorneys.
Cato also questioned the effectiveness of internal enforcement, pointing to past misconduct cases where discipline was limited or absent.
Among the examples cited was the 2008 prosecution of former Sen. Ted Stevens, where prosecutors were accused of withholding evidence related to a key witness. Internal investigators reportedly recommended discipline, but those findings were later overturned on procedural grounds.
Cato also referenced the Bundy family prosecution (involving a 2014 standoff between a cattle rancher and law enforcement), which a federal judge dismissed after finding “flagrant misconduct,” including the concealment of evidence. According to the institute, the lead prosecutor did not face major professional consequences and later advanced to a senior role.
To illustrate the broader value of external oversight, Cato cited a 1985 audit of the Veterans Administration that found dozens of doctors in the agency had already been disciplined by state medical boards, including some who had lost their licenses. The institute argued those problems might have remained hidden without outside review.
Even while acknowledging that professional licensing systems are imperfect, critics maintain that exempting DOJ attorneys from the same standards applied to all other lawyers would create inconsistency and erode confidence in the legal system.
Separately, the State Bar of California joined the Oregon State Bar and the Washington State Bar Association in an amicus brief filed April 3 in the U.S. Court of Appeals for the D.C. Circuit. That filing supported four law firms that obtained permanent injunctions against Trump administration executive orders targeting them for representing clients politically disfavored by the administration.
The brief argues those executive orders infringe on clients’ First Amendment rights to choose counsel and petition the courts, threaten attorney independence, and intrude on the judiciary’s inherent authority to regulate the legal profession.
The comment period on the DOJ proposed rule closed April 6. The rule has not been finalized.
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