Attorney General Bonta Opposes U.S. DOJ Exclusive Authority that Shields Federal Attorneys from Accountability

OAKLAND -California Attorney General Rob Bonta joined a multistate comment letter of 22 attorneys general in opposing the United States Department of Justice's (U.S. DOJ) proposed rule that would undercut State Bar disciplinary proceedings against federal attorneys by allowing U.S. DOJ to review allegations - including if they violated any ethics rule while engaged in federal duties - against its own attorneys. More troubling, the U.S. Attorney General would have the authority to request the State Bar disciplinary authority to suspend or displace any investigative steps pending U.S. DOJ's review. In the comment letter, Attorney General Bonta and the coalition urge the U.S. DOJ to withdraw its proposed rule because it is contrary to law and jeopardizes the integrity of our legal system.

"U.S. DOJ is attempting to place itself and its attorneys above the law. Let's be clear: no one is above the law. This sweeping assertion of authority threatens to limit state ethical rules, delay accountability, and undermine public trust in the legal system," said Attorney General Bonta. "This rule is an abuse of authority and against the law. It is unethical for the federal government to have unchecked control over any attorney's conduct, and it remains critical for the states to retain their independent authority over attorneys licensed or practicing within their jurisdiction. U.S. DOJ will not get away with unethical conduct, and neither will their attorneys. My team of lawyers and I are committed to upholding the law and ensuring that every attorney, no matter who they represent, is held to the same standards."

Nothing is more important to maintaining the integrity of our legal system and the public's trust in the fair administration of justice than ensuring that all lawyers adhere to the ethical rules and standards governing the legal profession and that they face consequences when they fail to do so. The proposed rule seeks to codify a process by which U.S. DOJ would request State Bar disciplinary authorities to suspend state investigations or proceedings against U.S. DOJ attorneys who are reported for professional misconduct in order to allow an opportunity for U.S. DOJ to conduct its own review first. U.S. DOJ may attempt to frame parallel state investigations or disciplinary proceedings as a form of "interference" with U.S. DOJ's review of its employees and may take undefined action against those state investigations. Allowing U.S. DOJ to protect federal employees accused of professional misconduct would never be appropriate, but it is particularly improper at a time when federal courts across the country have been increasingly vocal regarding departures from the professional norms previously upheld by the U.S. DOJ. The U.S. Attorney General would be entitled to assume exclusive control over enforcing state ethics rules against U.S. DOJ attorneys and be able to direct attorneys not to submit to interviews or provide non-public information in State Bar disciplinary investigations. While the rule's text says the U.S. Attorney General may only "request" suspension of State Bar proceedings, implying states can refuse, it also suggests that U.S. DOJ could displace or suspend such proceedings if they wished to.

In the comment letter, Attorney General Bonta argues that maintaining the integrity of the legal system and the public's trust in the fair administration of justice requires holding all attorneys to the same ethical rules and standards, and the proposed rule fails to do so and is contrary to law for the following reasons:

• The proposed rule infringes on states' sovereign power to license, regulate and discipline attorneys licensed by and practicing in their jurisdictions which has consistently been vested in state courts as an exercise of judicial power. Lawyers in the U.S., like doctors and other professionals, are licensed at the state level rather than by the federal government, and even federal government lawyers are required to maintain state law licenses.
• The proposed rule contradicts states' disciplinary bodies robust screening role which ensures that complaints that lack merit do not result in unnecessary investigations, and that those complaints that are investigated only result in discipline where it is warranted.
• The proposed rule encroaches on states' authority to establish and enforce standards of attorney discipline by creating an enforceable mandate that would allow U.S. DOJ to preempt State Bar disciplinary proceedings or compel their suspension, constituting a significant intrusion on state authority without any assessment of its impact on federalism.
• The proposed rule is contrary to law because displacing or interfering with State Bar disciplinary proceedings exceeds the U.S Attorney General's rule making authority and contradicts 28 U.S.C. section 530(B) which requires federal government attorneys to be subject to state laws and rules governing attorneys.
• The proposed rule is arbitrary and capricious because there is no rational justification or legitimate need for it. and U.S. DOJ has failed to identify any instances in which the state systems have been inadequate or have been wielded improperly.
• The proposed rule lacks adequate procedural safeguards to ensure that U.S. DOJ's review of allegations of misconduct by U.S. DOJ attorneys would be conducted in a fair, thorough, and timely manner.
• The proposed rule would affirmatively require U.S. DOJ attorneys to violate state rules of professional conduct if the U.S. Attorney General directed them to not participate in interviews or provide any non-public information to state discipline bodies.

In filing this letter, Attorney General Bonta joins the attorneys general Arizona, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, , Colorado, New Jersey, Nevada, New Mexico, New York, North Carolina, Oregon, Rhode Island, Virginia, and Washington.