DOJ Rule Tests Judicial Independence
A newly proposed rule from the U.S. Department of Justice is drawing growing scrutiny from legal experts who warn it could fundamentally reshape the balance of power between federal agencies and the courts.
Titled the “Review of State Bar Complaints and Allegations Against Department of Justice Attorneys,” the proposed rule would allow the Attorney General to “establish a process for reviewing bar complaints and allegations against its attorneys” while simultaneously allowing the Department to “suspend any parallel investigations” during initial reviews of ethics violations. Additionally, if any other state bar disciplinary authority refuses to suspend their own investigations, the proposed law would allow the DOJ to “take appropriate action” against said bar authorities.
In a public statement, the Chicago Council of Lawyers urged the withdrawal of the proposed rule. On its face, the rule appears procedural. In practice, however, it would give the Attorney General the ability to control when and whether disciplinary action against government lawyers moves forward.
Critics argue that the shift raises serious constitutional concerns. State supreme courts and their disciplinary bodies have long held primary authority over attorney ethics and licensure. The proposed rule would allow a federal executive agency to intervene in that process, effectively sidelining independent oversight and consolidating power within the DOJ itself.
The lawyers’ group cites several legal precedents against the proposed law, including the McDade Amendment. Also known as the Citizens Protection Act of 1998, the amendment “instructs Department of Justice litigators to adhere to the ethical standards which apply to other attorneys in the places where the litigators perform their duties.” The CCL argues the new proposed amendment not only establishes a separate, regulatory body for DOJ attorneys but also allows for increased likelihood of bias, delay, and inaction in processing complaints against DOJ attorneys.
“Numerous public reports of senior DOJ officials pressuring Department lawyers to comply with agenda-driven directives—even when doing so would risk violating their ethical obligations—do not inspire confidence that DOJ would conduct a searching and objective review of bar complaints alleging violations of state professional-conduct rules,” the CCL said in the statement.
The CCL is not alone in warning against the DOJ’s proposal — the National Association of Criminal Defense Lawyers and Lawyers Defending American Democracy have also published statements in the past month condemning the proposal. Legal Defense Fund President and Director-Counsel Janai S. Nelson noted, “An Administration that has already dismantled its own internal ethics safeguards – removing independent oversight officials and filling the Justice Department with political loyalists – cannot credibly claim the right to investigate itself.”
Recent reporting and legal analysis suggest this proposal is part of a wider trend in which internal accountability mechanisms are being restructured or diminished, leaving courts to grapple with increasingly assertive executive authority. Framed narrowly, the rule governs lawyer discipline. Viewed more broadly, it raises a deeper question: who ultimately holds government lawyers accountable—the courts, or the executive branch they represent?
