On March 5, the Department of Justice (DOJ) proposed a new regulation formalizing a process in place since the late 1970s and boldly asserting unspecified federal authority over the timing of state bar investigations. The proposed rule creates far more problems than it claims to solve. And it puts DOJ career attorneys directly in the crosshairs. For this reason, we urge our fellow DOJ alums to submit a comment by April 6, 2026, urging the Department to reject this proposed new rule.
Accountability at DOJ
To appreciate why we oppose this new rule, it’s helpful to understand how the Department’s system of accountability used to work. Federal law, of course, requires every DOJ attorney to maintain an active bar license in a state. Federal law also requires DOJ attorneys to satisfy the ethical requirements of the state in which they are licensed and the state in which they practice. Because DOJ attorneys practice across the country, DOJ created the Professional Responsibility Advisory Office to help attorneys navigate varying state bar rules.
Courts also routinely hold DOJ attorneys to an even higher standard of conduct, as they should: DOJ attorneys work to protect the public interest. As former career DOJ attorneys, we know how seriously our former colleagues took their ethical obligations and how seriously the Department took its responsibility to ensure even-handed accountability.
The Department’s process for ensuring attorney accountability, even as late as 2024, generally followed a predictable pattern:
- If a Court suggested that a DOJ attorney may have violated their ethical duties, DOJ policy triggered a self-reporting obligation and the DOJ supervisor would typically report that incident pre-emptively to DOJ’s Office of Professional Responsibility (OPR), the office responsible for investigating alleged attorney professional misconduct. This referral was only required if the allegation was non-frivolous, but many supervisors referred all such allegations out of an abundance of caution. OPR also independently combed through various legal databases and press reports to identify possible allegations for investigation.
- Upon a referral or spotting an allegation, OPR typically opened an investigation and asked the DOJ supervisor to forward relevant filings from the case. OPR often waited to actively investigate until after the relevant Court made findings or dismissed the allegations.
- After the Court determined whether the allegations constituted misconduct and imposed any punishment for the attorney, OPR completed its investigation, taking statements from the relevant DOJ employees and gathering any additional evidence necessary.
- If OPR found misconduct, its findings were referred to a centralized DOJ Review Board (which has had many names over the years, but is currently the Professional Misconduct Review Unit (PMRU)), for determination of any discipline against the attorney, including possible referral to the relevant state bar(s).
- At any point in this process, a complaint also could have been filed with the attorney’s state bar or the bar of the state in which they were practicing. Under those circumstances, OPR typically suggested to the state bar that if they delayed their investigation until after OPR had concluded its investigation, OPR may be able to share with the state bar the results of OPR’s investigation. Given the staffing limitations of many state bars, this was an efficient and mutually beneficial arrangement.
- Of course, at each of these steps, the Court, the state bar, and DOJ each maintained the right to actively investigate at any point; none was bound to await the outcome of the other’s process. Instead, this informal sequence which was in place for decades hinged on a level of mutual respect and collaboration.
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