Proposed Rule2026-04390
Review of State Bar Complaints and Allegations Against Department of Justice Attorneys
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Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 5, 2026
Issuing agencies
Justice Department
Abstract
The Department of Justice ("Department") proposes to establish a process for reviewing bar complaints and allegations against its attorneys. Under the proposed rule, before a current or former Department lawyer may participate in any investigative steps initiated by the bar disciplinary authority of a State, Territory, or the District of Columbia in response to allegations that a current or former Department attorney violated an ethics rule while engaging in that attorney's federal duties, the Department will have the right to review the allegations in the first instance and shall request that the bar disciplinary authority suspend any parallel investigations until the completion of the Department's review.
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<title>Federal Register, Volume 91 Issue 43 (Thursday, March 5, 2026)</title>
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[Federal Register Volume 91, Number 43 (Thursday, March 5, 2026)]
[Proposed Rules]
[Pages 10780-10787]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-04390]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 77
[Docket No. OAG199, AG Order No. 6653-2026-A]
RIN 1105-AB82
Review of State Bar Complaints and Allegations Against Department
of Justice Attorneys
AGENCY: Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Justice (``Department'') proposes to
establish a process for reviewing bar complaints and allegations
against its attorneys. Under the proposed rule, before a current or
former Department lawyer may participate in any investigative steps
initiated by the bar disciplinary authority of a State, Territory, or
the District of Columbia in response to allegations that a current or
former Department attorney violated an ethics rule while engaging in
that attorney's federal duties, the Department will have the right to
review the allegations in the first instance and shall request that the
bar disciplinary authority suspend any parallel investigations until
the completion of the Department's review.
DATES: Comments are due on or before April 6, 2026. Comments received
by mail will be considered timely if they are postmarked on or before
the last day of the comment period. The electronic Federal Docket
Management System will accept electronic comments until midnight
Eastern time at the end of that day.
ADDRESSES: If you wish to provide comments regarding this rulemaking,
you must submit comments, identified by the agency name, via the
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
website instructions for submitting comments.
Instructions: All submissions received must include the agency name
and Docket No. OAG199. Paper comments that duplicate an electronic
submission are unnecessary. All comments received may be posted without
change to <a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal
information provided. For detailed instructions on sending comments and
additional information on the rulemaking process, see the ``Public
Participation'' heading of the SUPPLEMENTARY INFORMATION section of
this document. In accordance with 5 U.S.C. 553(b)(4), a summary of this
rule may be found at <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Robert Hinchman, Senior Counsel,
Office of Legal Policy, U.S. Department of Justice, telephone (202)
514-4601.
SUPPLEMENTARY INFORMATION:
I. Public Participation
Interested persons are invited to participate in this rulemaking by
submitting written data, views, or arguments on all aspects of this
rule through the method identified above and by the deadline stated
above.
Please note that all comments received are considered part of the
public record and made available for public inspection at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Such information includes personally identifiable
information (such as name, address, etc.) voluntarily submitted by the
commenter.
The Department may withhold from public viewing information
provided in comments that it determines is offensive, that may
adversely impact the privacy of a third party, or that should be
withheld for other legitimate reasons. For additional information,
please read the privacy notice that is available through the link in
the footer of <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
II. Discussion
A. Overview
The proposed rule would amend 28 CFR part 77 to establish a process
for the Department to review complaints and allegations filed against
its attorneys with the bar disciplinary
[[Page 10781]]
authorities of the States, the Territories, and the District of
Columbia (``State bar disciplinary authorities''). If finalized as
proposed, 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
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. If the Attorney General decides not to complete her review, she
or her designee will notify the applicable State bar disciplinary
authorities and the affected attorney of that fact so they may resume
their investigations or disciplinary hearings. The Attorney General or
her designee will also notify the applicable State bar disciplinary
authorities of the completion and, as appropriate, the results of the
review. The proposed rule would further provide that 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.
B. 28 U.S.C. 530B and 28 CFR Part 77
The Department has long been committed to upholding the highest
standards of ethics among its attorneys. On October 21, 1998, the
President signed the Omnibus Consolidated and Emergency Supplemental
Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681. Division
A, section 801 of that statute, also known as the McDade Amendment, is
enacted at 28 U.S.C. 530B and became effective on April 19, 1999. See
generally Charles Doyle, Cong. Rsch. Serv., RL30060, McDade-Murtha
Amendment: Ethical Standards for Justice Department Attorneys (Dec. 18,
2001), <a href="https://perma.cc/C3AE-F8X2">https://perma.cc/C3AE-F8X2</a>. Section 530B, titled ``Ethical
standards for attorneys for the Government,'' 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.
(b) The Attorney General shall make and amend rules of the
Department of Justice to assure compliance with this section.
(c) As used in this section, the term ``attorney for the
Government'' includes any attorney described in section 77.2(a) of
part 77 of title 28 of the Code of Federal Regulations and also
includes any independent counsel, or employee of such a counsel,
appointed under chapter 40.
28 U.S.C. 530B.
Section 530B applies to Department attorneys and attorneys acting
pursuant to Department authorization. It does not apply to
investigative agents, even if they are attorneys, although covered
attorneys must ensure that an investigator whom they supervise conforms
his conduct to any applicable rules if so required by the ethics rules
that apply to the attorneys. See 28 CFR 77.2(a) (defining the phrase
``attorney for the government'' to exclude attorneys employed as
investigators by the Department). It does not apply to attorneys in
Federal government agencies other than the Department, unless they are
appointed as Special Assistant United States Attorneys. See id.
On April 20, 1999, the Department published an interim final rule
to meet the requirement of section 530B(b) that the Attorney General
``make and amend rules . . . to assure compliance'' with the statute.
See Ethical Standards for Attorneys for the Government, 64 FR 19273
(Apr. 20, 1999) (codified as amended at 28 CFR 77) (``1999 Rule''). The
Department ``concluded that the text, title, and legislative history''
of section 530B demonstrate that the statute ``applies only to rules of
ethical conduct, such as codes of professional responsibility'' adopted
by States or Federal courts. See id. at 19273-74. In the 1999 Rule, the
Department sought to provide reasonable definitions of the statutory
language and to identify issues that Department attorneys should
examine when faced with questions about whether States' rules of
professional responsibility apply to them. See id. at 19274.
The Department further concluded when it promulgated the 1999 Rule
that ``section 530B does not change the enforcement authority of the
Department of Justice's Office of Professional Responsibility, state
authorities, or the federal courts'' because the statute ``is silent on
enforcement mechanisms.'' Id. Accordingly, the 1999 Rule left in place
the existing structure for the enforcement of ethical rules whether by
the Department, the State bar disciplinary authorities, or the courts.
See id. (``The regulations thus recognize that attorneys are
principally subject to discipline by their state of licensure and the
courts before which they practice. Thus, although Department attorneys
are also subject to discipline by the Office of Professional
Responsibility, the regulations generally direct Department attorneys
to look, according to the circumstances, to the rules of the court
before which they are appearing and the rules of their licensing
jurisdiction.''). That disciplinary process will be described in the
next section.
C. The Department's Attorney Discipline Process
The Department's process for discipling attorneys currently
involves three chief Department components: the Office of Professional
Responsibility (``OPR''), the Professional Misconduct Review Unit (the
``PMRU''), and the Office of the Inspector General (``OIG'').
OPR has jurisdiction to review allegations of misconduct made
against Department attorneys that relate to the attorneys' exercise of
their authority to investigate, litigate, or provide legal advice. See
28 CFR 0.39, 0.39a(a)(1). When OPR has determined after a full
investigation that a career Department attorney has engaged in
professional misconduct--i.e., that the attorney has violated a clear
and unambiguous standard either intentionally or recklessly--it refers
the matter to the PMRU.
The PMRU reviews OPR's facts, analysis, and conclusions. If it
finds that a preponderance of the evidence supports OPR's conclusions
regarding professional misconduct, the PMRU will decide whether
discipline is appropriate. Attorney discipline may include a reprimand,
suspension, termination, counseling, or additional training. In
addition, when the PMRU concludes that a State rule of professional
conduct is implicated by the Department attorney's conduct, it will
authorize OPR to refer the matter to the appropriate bar disciplinary
authorities. Under current practice, for most attorney professional
misconduct matters, the PMRU is the final decisionmaker for the
Department with respect to findings of misconduct by career Department
attorneys, whether and what discipline to impose on the Department
attorney, and whether to refer the Department attorney to the bar.
OIG has jurisdiction to review allegations against Department
attorneys when the allegations concern waste,
[[Page 10782]]
fraud, or abuse and when the allegations are not otherwise in OPR's
jurisdiction. 28 CFR 0.29h(b); see also 28 CFR 0.29c(a)-(b). OIG refers
its findings both to the subject attorney's component for discipline
and to the PMRU to determine whether the conduct at issue implicates a
rule of professional conduct. When requested by the PMRU, OPR reviews
the OIG investigation, analyzes the conduct and findings in light of
the applicable rules of professional conduct, and provides a
recommendation to the PMRU as to whether the employee should be
referred to the appropriate bar when a rule is implicated by the
subject's conduct. If the PMRU concludes a bar rule is implicated, it
authorizes OPR to notify the appropriate bar disciplinary authorities
of the Department's findings.
OPR is responsible for acting as a liaison with the bar
disciplinary authorities of the States, the Territories, and the
District of Columbia on behalf of the Department. See 28 CFR
0.39a(a)(6). In practice, OPR advises the relevant State bars of
attorney misconduct after authorization from the PMRU; assists the
State bars in obtaining evidence in the control of the Department,
unless disclosure is precluded by law or a significant law enforcement
interest; and coordinates with the State bars on matters of mutual
interest to improve attorney ethical standards and conduct.
When OPR refers a matter to a State bar, it is often the first
information the State bar has received about the allegations. In some
instances, however, a complainant has separately made an allegation to
the State bar. In even rarer instances, the matter may have garnered
sufficient media attention that the State bar is aware of the
allegations absent a formal complaint. Generally, even in those matters
in which a State bar has received a complaint about a Department
attorney's conduct before or during OPR's investigation, most State
bars refrain from taking further action until OPR is able to complete
the investigation so that the bar has a full account, through OPR's
report of investigation, of the evidence and OPR's analysis, as well as
the PMRU's conclusions, when determining whether to open their own
investigation.
Based on OPR's experience interacting with State bar disciplinary
authorities over several decades, most State bars do not take
additional action after referrals are made concerning current or former
Department attorneys. State bars have limited resources to oversee all
the attorneys licensed in their respective jurisdictions, and they may
determine that the Department attorney's conduct does not warrant the
use of their resources. They may also decline to take further action
because they view the Department's disciplinary actions as sufficient
to accomplish the purposes of attorney discipline, including deterring
future misconduct.
D. Prioritizing Attorney Discipline and Ending the Weaponization of the
Bar Complaint and Investigation Process
After more than a quarter century operating under the 1999 Rule and
the attorney discipline process described above, recent events have
prompted the Department to consider whether it is necessary to
restructure the enforcement of ethical rules by OPR and the bar
disciplinary authorities.
First, the President directed the Department to examine attorney
discipline and its role in government weaponization. In Executive Order
14147, Ending the Weaponization of the Federal Government, the
President announced that the policy of the United States is ``to
identify and take appropriate action to correct past misconduct by the
Federal Government related to the weaponization of law enforcement.''
E.O. 14147, 90 FR 8235, 8235 (Jan. 20, 2025). He further ordered the
Attorney General to ``take appropriate action to review the activities
of all departments and agencies exercising civil or criminal
enforcement authority of the United States,'' including the Department.
Id. The President subsequently directed the Attorney General ``to
prioritize enforcement of . . . regulations governing attorney conduct
and discipline.'' Memorandum on Preventing Abuses of the Legal System
and the Federal Courts, 2025 Daily Comp. Pres. Doc. 2 (Mar. 21, 2025).
These broad pronouncements necessitate an evaluation of the ways in
which the Attorney General manages, supervises, and, if necessary,
disciplines Department attorneys.
Second, over the past several years, political activists have
weaponized the bar complaint and investigation process. For example,
political activists have filed bar complaints against senior Department
officials, including the Deputy Attorney General, the former Acting
Deputy Attorney General, the Deputy Assistant Attorney General for the
Federal Programs Branch of the Civil Division, and the former interim
United States Attorney for the District of Columbia, as well as career
Department of Justice attorneys. Even more troubling than the recent
spate of State bar complaints is the willingness of some State bar
disciplinary authorities to give credence to such complaints. Recently,
for example, certain State bar disciplinary authorities have undertaken
investigations of Department attorneys without notifying and
coordinating with OPR.
This unprecedented weaponization of the State bar complaint process
risks chilling the zealous advocacy by Department attorneys on behalf
of the United States, its agencies, and its officers. That chilling
effect, in turn, would interfere with the broad statutory authority of
the Attorney General to manage and supervise Department attorneys. The
Attorney General is ``the head of the Department of Justice,'' 28
U.S.C. 503, and, subject to several circumscribed exceptions, is
``vested'' with ``[a]ll functions of other officers of the Department
of Justice and all functions of agencies and employees of the
Department of Justice,'' 28 U.S.C. 509. These functions include
``conduct[ing] any kind of legal proceeding, civil or criminal,
including grand jury proceedings and proceedings before committing
magistrate judges, which United States attorneys are authorized by law
to conduct.'' 28 U.S.C. 515(a). Conducting litigation on behalf of the
United States or its officers ``is reserved to officers of the
Department of Justice, under the direction of the Attorney General.''
28 U.S.C. 516. The Attorney General has the authority to send these
officers ``to any State or district in the United States to attend to
the interests of the United States in a suit pending in a court of the
United States, or in a court of a State, or to attend to any other
interest of the United States.'' 28 U.S.C. 517. Furthermore, the
Attorney General is responsible for ``supervis[ing] all litigation to
which the United States, an agency, or officer thereof is a party.'' 28
U.S.C. 519. To fulfill these responsibilities, the Attorney General is
authorized to ``make such provisions as he considers appropriate
authorizing the performance by any other officer, employee, or agency
of the Department of Justice of any function of the Attorney General.''
28 U.S.C. 510.
When it promulgated the 1999 Rule, the Department concluded that
the enactment of section 530B did ``not alter, amend, or supersede''
these statutes, nor did it ``in any way interfere with the Attorney
General's authority to determine who may represent the United States in
any proceeding.'' 64 FR at 19274. At the time, however, bar
disciplinary complaints against Department lawyers were comparatively
rare, and complaints with political valences vanishingly so. In the
decades following the 1999 Rule, the Department, through OPR, worked
[[Page 10783]]
collaboratively with State bar disciplinary authorities to ensure that
Department attorneys maintain the highest standards of ethics. But the
recent complaints and disciplinary proceedings that target internal
Department deliberations undoubtedly intrude on the Attorney General's
statutory responsibility to carry out the functions of the Department
of Justice through its attorneys in a way unknown in the late 1990s.
This intrusion requires the Department to reconsider the current system
for enforcing ethics rules against Department attorneys.
E. Authority for the Department To Enforce State Ethics Rules
The Department has not previously offered a legal interpretation on
the scope of the Attorney General's rulemaking authority under
subsection (b) of section 530B. When the Department promulgated the
1999 Rule shortly after the enactment of section 530B, it noted that
the statute ``is silent on enforcement mechanisms.'' Id. Because of
this silence, the Department concluded that section 530B did ``not
change the enforcement authority of [OPR], state authorities, or the
federal courts.'' Id. But this statement is fundamentally ambiguous as
it does not explain the nature of these entities' respective existing
authorities. This is problematic as the Department had previously taken
the position that State bars had no authority over its lawyers in the
performance of their official functions.\1\ The Department offered no
opinion as to whether the Attorney General could change this
enforcement authority pursuant to her rulemaking authority under
subsection (b).
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\1\ Memorandum for all Federal Prosecutors from Richard
Thornburgh, Attorney General (June 8, 1989), Memorandum, Reprinted
in Hearing before the Government Information, Justice, and
Agriculture Subcomm. of the Comm. on Government Operations, 101st
Cong. 289 (1990); 28 CFR part 77, FR Vol. 59, No. 149
(1994)(reflecting the Thornburgh Memorandum).
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The Department has concluded that section 530B permits the Attorney
General to establish an enforcement mechanism for assuring that
Department attorneys comply with State ethics rules. The general
presumption is that absent a clear statement from Congress, federal law
``control[s] the constitution and laws of the respective [S]tates, and
cannot be controlled by them.'' McCulloch v. Maryland, 17 U.S. (4
Wheat.) 316, 426 (1819). ``From this principle is deduced [a]
corollary'' the ``effect'' of which ``is `that the activities of the
Federal Government are free from regulation by any [S]tate.' '' Hancock
v. Train, 426 U.S. 167, 178 (1976) (quoting Mayo v. United States, 319
U.S. 441, 445 (1943)); see also, e.g., United States v. Washington, 596
U.S. 832, 835 (2022); Goodyear Atomic Corp. v. Miller, 486 U.S. 174,
180 (1988); Cunningham v. Neagle, 135 U.S. 1 (1890).
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. See 28 CFR
77.1(b) (stating that the McDade Amendment ``should not be construed in
any way to alter federal substantive, procedural, or evidentiary
law''). Subsection (a) of section 530B requires that State ethics rules
be applied to Department attorneys ``to the same extent and in the same
manner as other attorneys in that State.'' 28 U.S.C. 530B(a).
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 authority of the Attorney General to
enforce those substantive standards. See Neagle, 135 U.S. at 60-62. In
addition, subsection (b) of section 530B provides that ``[t]he Attorney
General shall make and amend rules of the Department of Justice to
assure compliance with [section 530B].'' 28 U.S.C. 530B(b).
Accordingly, subsection (b) authorizes the Attorney General to
promulgate regulations to assure that Department attorneys comply with
the applicable rules of ethical conduct.
By its plain meaning, the power conferred on the Attorney General
``to assure compliance'' with the statute is broad. Id. The verb
``assure'' means to ``make (something) certain to happen,'' New Oxford
American Dictionary 98 (3d ed. 2010), or ``to make certain the coming
or attainment of'' some objective or event, Merriam-Webster's
Collegiate Dictionary 75 (11th ed. 2020). Subsection (b) of section
530B thus requires the Attorney General to exercise his regulatory
authority to make certain that Department attorneys comply with
applicable ethics rules. It 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. The Attorney
General may select from a range of policy choices. Both the Supreme
Court and the lower courts have ``consistently instructed'' that when
Congress writes statutes with ``broad, sweeping language,'' such
statutes ``should be given broad, sweeping application.'' Consumer
Elecs. Ass'n v. FCC, 347 F.3d 291, 298 (D.C. Cir. 2003) (citing New
York v. FERC, 535 U.S. 1, 21 (2002)); see also PGA Tour, Inc. v.
Martin, 532 U.S. 661, 689 (2001) (citing Pa. Dep't of Corr. v. Yeskey,
524 U.S. 206, 212 (1998)). Here, because the language selected by
Congress in section 530B is broad, so too is the authority of the
Attorney General.
The broader statutory framework regulating the Department provides
further support that Congress preserved the Attorney General's
authority to enforce the substantive standards imposed by the McDade
Amendment on Department attorneys. Department attorneys are authorized
by Federal statute to practice law on behalf of the United States,
subject to the Attorney General's supervision. See 28 U.S.C. 517 (``The
Solicitor General, or any officer of the Department of Justice, may be
sent by the Attorney General to any State or district in the United
States to attend to the interests of the United States in a suit
pending in a court of the United States, or in a court of a State, or
to attend to any other interest of the United States.''). Congress has
required that Department attorneys be licensed members of a State bar
but has not required that they be members of the bar of the State in
which they practice. See 28 U.S.C. 530C(c)(1) (funds provided to the
Attorney General may not be used to pay attorneys who are not ``duly
licensed and authorized to practice as an attorney under the law of a
State, a territory of the United States, or the District of
Columbia''). Department attorneys are not required to be licensed in
each State or jurisdiction in which they practice--and are not liable
for the unlicensed practice of law when they do so--because the
Department's officers and agents do not need approval from a State or
the District of Columbia to discharge their Federal responsibilities.
See Sperry v. Florida ex rel. Fla. Bar, 373 U.S. 379, 384-85 (1963).
Congress has thus created a framework for Department attorneys
under which the State whose substantive ethics rules apply may differ
from the State of licensure and enforcement, and Congress has left to
[[Page 10784]]
the Attorney General the discretion on how to enforce substantive
ethics rules. 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.
Subsection (a) of section 530B, which only directs Department
attorneys to comply with State and local Federal court ethics rules,
does not change the enforcement authority of OPR or the State bar
disciplinary authorities. But subsection (b) of section 530B grants the
Attorney General rulemaking authority to assure compliance with the
statute. And the regulations that the Attorney General is authorized to
promulgate include those that establish ``enforcement mechanisms.'' 64
FR at 19274.
F. Proposed Amendments to 28 CFR Part 77
Pursuant to the Attorney General's rulemaking authority in
subsection (b) of section 530B, the proposed rule would amend 28 CFR
part 77 to formalize a process--abided by in practice if not mandated
by law until recently--for the Department to review allegations against
its attorneys before the bar disciplinary authorities may undertake any
investigative steps that seek information or otherwise require
participation from a Department attorney. The primary proposed
amendment would be the addition of a new Sec. 77.5, which would
establish the process for the Attorney General or her designee to
review bar complaints and allegations. The proposed rule would also
make corresponding amendments to Sec. 77.1, which addresses the
purpose and authority of 28 CFR part 77.
1. Addition of New 28 CFR 77.5 and Redesignation of 28 CFR 77.5 as 77.6
The proposed rule would redesignate Sec. 77.5 as Sec. 77.6 and
add a new Sec. 77.5. The new Sec. 77.5 would be titled ``Review of
state bar complaints and allegations against current and former
attorneys for the government.'' Although not named in the proposed
rule, OPR would be the Attorney General's designee for reviewing bar
complaints and allegations against Department attorneys. The rule, as
proposed, would not alter or abolish the responsibilities of the PMRU
and OIG in carrying out the Department's attorney discipline process.
If adopted as proposed, under the rule, the Attorney General,
through OPR, will have the right to review in the first instance any
allegations that a current or former Department attorney violated an
ethics rule while engaging in that attorney's duties for the
Department. This right of first review will apply whether the
allegations are made in a complaint filed by a third party or the bar
disciplinary authorities open an investigation into the allegations
without a complaint having been filed. To ensure that OPR is aware of
all bar complaints filed against Department attorneys and all
investigations opened into Department attorneys by bar disciplinary
authorities, the Department will amend title 1 of the Justice Manual to
require Department employees to report to OPR through their supervisors
all State bar complaints filed against them and all investigations
opened into them by bar disciplinary authorities of which they are
informed (whether by service or other means).\2\ Department attorneys
who end their service with the Department will receive appropriate
training on how to contact OPR if they later become the subject of
State bar complaints or investigations into allegations that they
engaged in ethical misconduct while still working for the
Department.\3\
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\2\ The Department is aware that certain bars filter obviously
meritless complaints before forwarding them to the affected lawyer.
That practice is commendable, and it imposes no obligation on
Department lawyers to take action before a complaint is formally
provided to them by bar authorities.
\3\ If a former employee chooses not to inform OPR, and the
Attorney General learns of the complaint, he reserves the right to
choose to participate consistent with the relevant State's law.
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Upon learning that a State bar complaint has been filed against a
current or former Department attorney, or that a State bar
investigation has been opened into a current or former Department
attorney without a complaint, OPR will promptly notify the appropriate
State bar disciplinary authorities about whether the Department intends
to exercise its right to review the complaint and allegations in the
first instance. If the Department decides to review the State bar
complaint and allegations, OPR will request the State bar disciplinary
authorities to suspend their investigations or disciplinary
proceedings, and direct Department personnel not to provide any non-
public information to any parallel investigations or disciplinary
proceedings until the completion of OPR's review.\4\ If the Department
declines to exercise its right of review, it will also notify the State
bar disciplinary authorities of that decision so they may resume their
investigations or disciplinary proceedings. If OPR begins a review of a
State bar complaint and allegations but the Department decides for
whatever reason not to complete the review--because, for example, a
former Department attorney refuses to cooperate with OPR's
investigation--OPR will promptly notify the appropriate State bar
disciplinary authorities so they may resume their investigations or
disciplinary proceedings.
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\4\ Because all or nearly all interviews with State bars
regarding bar complaints are confidential, this will extend to
requests for such interviews.
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Once OPR has concluded its investigation and the PMRU has rendered
a decision, OPR will notify the appropriate State bar disciplinary
authorities of the completion and, as appropriate, the results of the
investigation. If the PMRU finds that the Department attorney violated
an ethics rule while engaging in that attorney's duties, the State bar
disciplinary authorities will then have the option of beginning or
resuming their investigations or disciplinary proceedings. The proposed
rule does not require State bar disciplinary authorities to defer to
OPR's findings that a Department attorney violated an ethics rule.
Furthermore, the proposed rule permits the State bar disciplinary
authorities to impose additional sanctions beyond those already imposed
by the Department, including suspension or permanent disbarment.
The proposed rule would better reflect the existing practices that
have developed between OPR and the State bar disciplinary authorities,
which will deter political activists from abusing the State bar
disciplinary process. Most bars already wait for OPR to complete its
investigation so that the bar has a full account, through OPR's report,
of the evidence and OPR's analysis when determining whether to open
their own investigations. In addition, most State bars decide not to
take additional action after a referral is made concerning a current or
former Department attorney.
In drafting this proposed rule, the Department considered that
State bars have interests that are different from those protected by
the Department. For instance, the Department is limited to
reprimanding, suspending, or terminating the employment of a Department
attorney who has engaged in misconduct, whereas the bar disciplinary
authorities may suspend or
[[Page 10785]]
revoke an attorney's license to practice law. The proposed rule
therefore does not prohibit the State bar disciplinary authorities from
imposing additional sanctions if the Department determines that an
attorney violated an ethics rule. But it does allow the Department,
which has access to information unavailable to any State bar due to
various statutory and constitutional privileges, to determine whether
such a rule was violated in the first instance. It also deters bad
actors from turning the State bar disciplinary process itself into a
tool to punish department lawyers and impede an unpopular initiative.
Relatedly, the Department also considered the fact that OPR cannot
compel former Department attorneys to submit to an interview or to
respond in writing to requests for information, whereas the bar
disciplinary authorities where an attorney is licensed have that
authority. Under the proposed rule, former Department attorneys have
the option to cooperate with OPR's investigation if they want the
allegations against them to be reviewed by OPR in the first instance.
However, if the former Department attorney declines to cooperate fully
with OPR's review, OPR may terminate its review without reaching a
conclusion as to the allegation. In that circumstance, the review of
the allegation will revert to the appropriate State bar disciplinary
authorities, which have the power to compel the attorney's cooperation.
The proposed rule will benefit Department attorneys by ensuring the
consistent application of the State ethics rules. OPR has 50 years of
experience in evaluating allegations of professional misconduct against
Department attorneys. It is intimately familiar with all State rules of
professional conduct and how they apply to the work of Department
attorneys. In addition, whereas the State bar disciplinary authorities
receive and review allegations against attorneys in a wide variety of
practice areas concerning many disparate issues, OPR's jurisdiction
encompasses only allegations of Department attorney misconduct, see 28
CFR 0.29c(b), which affords OPR a level of expertise that is unmatched
by any other entity. Funneling allegations of Department attorney
misconduct to one entity for review and resolution will ensure that
professional standards are maintained while also achieving the
consistent application of uniform standards.
The Department has concluded that the proposed rule is consistent
with the requirement in section 530B that State ethics rules must be
applied to Department attorneys ``to the same extent and in the same
manner as other attorneys in that State.'' 28 U.S.C. 530B(a). Under the
proposed rule, every Department attorney will still be subject to the
same substantive State ethics rules as non-Department attorneys in that
State--i.e., ``to the same extent.'' Moreover, the State ethics rules
will apply to Department attorneys under the same factual circumstances
as they would to non-Department attorneys under identical or similar
circumstances--i.e., ``in the same manner.'' For example, a State
ethics rule that prohibits attorneys from deceiving the court would
apply to both Department attorneys and non-Department attorneys alike,
and it would prohibit both Department attorneys and non-Department
attorneys from making deceptive statements to the court. The Department
does not interpret section 530B to require that Department attorneys
must be subject to the same procedures for enforcing substantive State
ethics rules.
The proposed rule does not create meaningful conflict with Model
Rule 8.5 of the American Bar Association's Model Rules of Professional
Conduct, which provides that a lawyer admitted to practice in a
jurisdiction or providing legal services in a jurisdiction is subject
to the disciplinary authority of that jurisdiction. See Model Rules of
Pro. Conduct r. 8.5(a) (ABA 2002). Under the proposed rule, Department
attorneys will still be subject to the disciplinary authority of the
bars of the States in which they are licensed and in which they engage
in their official duties. The State bar disciplinary authorities will
still have the power and the opportunity to review complaints against
current or former Department attorneys, to conduct disciplinary
proceedings, and to impose appropriate sanctions.
The proposed rule also does not create any conflict with Model Rule
8.3, which requires lawyers to report professional misconduct committed
by other lawyers to the appropriate bar disciplinary authorities. See
Model Rules of Pro. Conduct r. 8.3 (ABA 2002). Under the proposed rule,
a Department attorney's obligations to report professional misconduct
committed by other lawyers remains unchanged. OPR will engage with the
bar disciplinary authorities and will inform them of the Department's
conclusions with respect to allegations of professional misconduct by
current or former Department attorneys.
Nothing in the proposed rule addresses the authority of the Federal
courts to address alleged violations of local Federal court rules by
Department attorneys. See generally Chambers v. NASCO, Inc., 501 U.S.
32, 43 (1991) (``[A] federal court has the power to control admission
to its bar and to discipline attorneys who appear before it.''). The
proposed rule is focused only on the relationship between the
Department and the bar disciplinary authorities of the States, the
Territories, and the District of Columbia.
2. Amendments to 28 CFR 77.1
Section 77.1 addresses the purpose and authority of the regulations
included in part 77. Currently, the sole purpose of these regulations
is to provide guidance to Department attorneys. See 28 CFR 77.1(d). In
light of the addition of a new Sec. 77.5, the proposed rule amends
Sec. 77.1 to add that an additional purpose of part 77 is to establish
a process for the Attorney General or her designee to review bar
complaints and allegations against Department attorneys.
Paragraph (a) currently provides that the purpose of part 77 is
``to implement 28 U.S.C. 530B and to provide guidance to attorneys
concerning the requirements imposed on Department attorneys'' by that
statute. 28 CFR 77.1(a). The proposed rule adds that an additional
purpose of part 77 is ``to fulfill the Attorney General's obligation to
assure Department attorneys comply with these requirements.''
Paragraphs (b) and (c) interpret 28 U.S.C. 530B and the
requirements that the statute imposes on Department attorneys. The
proposed rule adds a new paragraph (d), shifting the current paragraph
(d) to become a new paragraph (e), that further interprets the statute
and the obligation that it imposes on the Attorney General to ``make
and amend rules of the Department of Justice to assure compliance with
this section.'' 28 U.S.C. 530B(b). The new paragraph (d) explains that
section 530B requires the Attorney General to assure that Department
attorneys comply with applicable ethics rules.
The renumbered paragraph (e) states that the regulations set forth
in part 77 ``provide guidance to Department attorneys in determining
the rules with which such attorneys should comply.'' 28 CFR 77.1(d).
The proposed rule adds a new paragraph (f) that explains that an
additional goal of the regulations in part 77 is to establish a process
for the Attorney General or his designee to review bar complaints and
allegations against Department attorneys.
[[Page 10786]]
G. Comments on the 1999 Rule
In addition to seeking public comment on the proposed rule, the
Department encourages comments on the provisions of the 1999 Rule that
are not being amended by this proposed rule. The Department issued the
1999 Rule as an interim final rule with request for comments, but it
never adopted a final rule responding to comments on the interim final
rule.
III. Regulatory Certifications
A. Administrative Procedure Act
This proposed rule relates to a matter of agency management or
personnel and is a rule of agency organization, procedure, or practice.
As such, this proposed rule is exempt from the usual requirements of
prior notice and comment and a 30-day delay in effective date. See 5
U.S.C. 553(a)(2), (b)(A), (d). Nonetheless, in its discretion, the
Department is seeking public comment on this proposed rule.
B. Regulatory Flexibility Act
An analysis under the Regulatory Flexibility Act is not required
for this proposed rule because the Department is not required to
publish a general notice of proposed rulemaking for this matter. See 5
U.S.C. 601(2), 604(a).
C. Executive Orders 12866 and 13563--Regulatory Review
This proposed rule has been drafted and reviewed in accordance with
section 1(b) of Executive Order 12866, 58 FR 51735, 51735-36 (Sept. 30,
1993), and Executive Order 13563, 76 FR 3821 (Jan. 18, 2011).
This proposed rule is ``limited to agency organization, management,
or personnel matters'' and thus is not a ``rule'' for purposes of
review by the Office of Management and Budget under section 3(d)(3) of
Executive Order 12866. See 58 FR at 51737. Accordingly, this proposed
rule has not been reviewed by the Office of Management and Budget.
D. Executive Order 12988--Civil Justice Reform
This proposed rule meets the applicable standards set forth in
sections 3(a) and 3(b)(2) of Executive Order 12988, 61 FR 4729, 4730-32
(Feb. 5, 1996).
E. Executive Order 13132--Federalism
This proposed rule will not have substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. It does not dictate the substance of the
ethical standards a State may adopt. The proposed rule would merely
better reflect the existing balance of responsibilities between State
bar authorities and the Department, whereby the State bar authority
should wait for OPR to conduct its review of the allegations and reach
a conclusion before deciding whether to pursue its own disciplinary
investigation. Therefore, in accordance with Executive Order 13132, 64
FR 43255 (Aug. 4, 1999), the Department has determined that this
proposed rule does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement.
F. Executive Order 14192--Unleashing Prosperity Through Deregulation
Executive Order 14192 (Unleashing Prosperity through Deregulation),
90 FR 9065 (Jan. 31, 2025), requires an agency, unless prohibited by
law, to identify at least 10 existing regulations to be repealed or
revised when the agency publicly proposes for notice and comment or
otherwise promulgates a new regulation that qualifies as an Executive
Order 14192 regulatory action (defined in OMB Memorandum M-25-20 as a
final significant regulatory action as defined in section 3(f) of
Executive Order 12866 that imposes total costs greater than zero). In
furtherance of this requirement, section 3(c) of Executive Order 14192
requires that the incremental costs associated with such new
regulations must, to the extent permitted by law, also be offset by
eliminating existing costs associated with at least 10 prior
regulations. Id. at 9065. However, this proposed rule is not an
Executive Order 14192 regulatory action because it is not a significant
regulatory action as defined by Executive Order 12866 and it does not
impose total costs greater than zero.
Therefore, this proposed rule is exempt from the offset
requirements of Executive Order 14192.
G. Executive Order 14294--Overcriminalization of Federal Regulations
Executive Order 14294 (Overcriminalization of Federal Regulations),
90 FR 20363 (May 9, 2025), requires agencies promulgating regulations
with criminal regulatory offenses potentially subject to criminal
enforcement to explicitly describe the conduct subject to criminal
enforcement, the authorizing statutes, and the mens rea standard
applicable to each element of those offenses. Id. at 20363. This
proposed rule would not create a Federal regulatory offense and is thus
exempt from Executive Order 14924 requirements.
H. Unfunded Mandates Reform Act of 1995
This proposed rule will not result in the expenditure by State,
local, and Tribal governments, in the aggregate, or by the private
sector, of $100 million or more (adjusted annually for inflation) in
any one year, and it will not significantly or uniquely affect small
governments. Therefore, no actions are necessary under the provisions
of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.
I. Congressional Review Act
This proposed rule is not a major rule as defined by the
Congressional Review Act, 5 U.S.C. 804. This action pertains to agency
management, personnel, and organization and does not substantially
affect the rights or obligations of non-agency parties. Accordingly, it
is not a ``rule'' as that term is used in the Congressional Review Act,
5 U.S.C. 804(3)(B), (C), and the reporting requirements of 5 U.S.C. 801
do not apply.
J. Paperwork Reduction Act of 1995
This proposed rule does not impose any new reporting or
recordkeeping requirements under the Paperwork Reduction Act of 1995,
44 U.S.C. 3501-3521.
List of Subjects in 28 CFR Part 77
Government employees, Investigations, Law Enforcement, Lawyers.
Authority and Issuance
For the reasons stated in the preamble, the Attorney General
proposes to amend 28 CFR part 77 as follows:
PART 77--ETHICAL STANDARDS FOR ATTORNEYS FOR THE GOVERNMENT
0
1. The authority for Part 77 continues to read as follows:
Authority: 28 U.S.C. 530B.
0
2. Revise Sec. 77.1 to read as follows:
Sec. 77.1 Purpose and authority.
(a) The Department of Justice is committed to ensuring that its
attorneys perform their duties in accordance with the highest ethical
standards. The purposes of this part are to implement 28 U.S.C. 530B,
to provide guidance to attorneys concerning the requirements imposed on
Department attorneys by 28 U.S.C. 530B, and to fulfill the Attorney
General's obligation to assure
[[Page 10787]]
Department attorneys comply with these requirements.
(b) Section 530B requires Department attorneys to comply with state
and local federal court rules of professional responsibility but should
not be construed in any way to alter federal substantive, procedural,
or evidentiary law or to interfere with the Attorney General's
authority to send Department attorneys into any court in the United
States.
(c) Section 530B imposes on Department attorneys the same rules of
professional responsibility that apply to non-Department attorneys, but
should not be construed to impose greater burdens on Department
attorneys than those on non-Department attorneys or to alter rules of
professional responsibility that expressly exempt government attorneys
from their application.
(d) Section 530B requires the Attorney General to assure Department
attorneys comply with applicable rules of professional responsibility.
(e) The regulations set forth in this part provide guidance to
Department attorneys in determining the rules with which such attorneys
should comply.
(f) The regulations set forth in this part establish a process for
the Attorney General or her designee to review bar complaints and
allegations against Department attorneys.
Sec. 77.5 [Redesignated as Sec. 77.6]
0
3. Redesignate Sec. 77.5 as Sec. 77.6.
0
4. Add new Sec. 77.5 to read as follows:
Sec. 77.5 Review of state bar complaints and allegations against
current and former attorneys for the government.
(a) Before the bar disciplinary authorities of the States, the
Territories, or the District of Columbia undertake any investigative
steps that seek information or otherwise require participation from an
attorney for the government in response to allegations that a current
or former attorney for the government violated a rule of ethical
conduct while engaging in that attorney's duties for the Department,
the Attorney General shall have the right to review the allegations in
the first instance. The Attorney General shall have this right whether
the allegations are made in a complaint filed by a third party or the
bar disciplinary authorities open an investigation into the allegations
without a complaint. The Attorney General or her designee shall notify
the appropriate bar disciplinary authorities whether she intends to
exercise her right to review the allegations and, if she does, she or
her designee shall request that the bar disciplinary authorities
suspend any parallel investigations or disciplinary proceedings until
the completion of the review. If the Attorney General decides not to
complete her review, she or her designee shall notify the appropriate
bar disciplinary authorities so they may resume their investigations or
disciplinary proceedings. The Attorney General or her designee shall
inform the appropriate bar disciplinary authorities of the completion
of her review. As appropriate, the Attorney General or her designee
shall also inform the appropriate bar disciplinary authorities of the
results of her review, including if the review finds that the attorney
for the government did not violate any rule of ethical conduct while
engaging in that attorney's duties.
(b) 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.
Dated: February 26, 2026.
Pamela Bondi,
Attorney General.
[FR Doc. 2026-04390 Filed 3-4-26; 8:45 am]
BILLING CODE 4410-28-P
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</html>Indexed from Federal Register on March 5, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.