By Scott Merrill
The US Department of Justice (DOJ) is attempting to intervene in how state bar associations handle cases brought against current or former DOJ attorneys.
The proposed move, legal experts say, undermines the authority of state bar associations and disciplinary systems like New Hampshire’s Attorney Discipline Office (ADO) to discipline federal prosecutors and other DOJ lawyers.
The rule, published in the Federal Register on March 5, would allow the US attorney general to review ethics complaints against current or former DOJ attorneys before state disciplinary authorities proceed with investigations when the alleged conduct occurred as part of the attorney’s federal duties.
Under the rule, if a bar complaint is filed alleging misconduct by a DOJ attorney, the attorney general or a designee could request that state bar authorities pause any investigation while the department conducts its own review through its Office of Professional Responsibility.
The proposed regulation states: “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, [the attorney general] will have the right to review the complaint and the allegations in the first instance.”
Critics say the rule could allow the DOJ to block state oversight of federal lawyers.
Former New Hampshire Bar Association President Richard Guerriero says the proposed rule change sends a message of “distrust and accusation, and that state disciplinary systems have been weaponized unfairly.”
“I certainly do not believe that has happened in New Hampshire,” he adds.
Michael Iacopino, who serves on the hearings committee of the ADO, says the proposal raises a lot of questions.
“Essentially, the DOJ is going back on very well-developed policy and it’s rife with conflicts of interest,” he says, adding the rule would amount to federal officials policing themselves. “What the DOJ is essentially saying is, ‘Don’t worry, we’ll take care of our own.’ That’s a conflict of interest right out of the gate.”
History of Federal Lawyer Regulation
The controversy touches on a long-running debate over whether federal prosecutors must follow state ethics rules.
The dispute dates to a 1989 directive issued by then-Attorney General Dick Thornburgh. Known as the “Thornburgh memo,” the policy asserted that federal prosecutors could bypass certain state ethical rules if those rules interfered with federal law-enforcement responsibilities.
In particular, the memo addressed professional conduct rules that prohibit lawyers from communicating directly with represented defendants without permission from their attorney.
Thornburgh argued such rules should not be allowed to “cripple federal investigative techniques,” asserting that state authority to regulate lawyers applied only when it did not conflict with federal responsibilities.
Defense attorneys and bar associations reacted strongly, arguing the policy encouraged prosecutors to ignore the rules that govern every other lawyer in the country.
In 1993, the DOJ backed away from the Thornburgh position and adopted what became known as the “Reno Rules,” formalizing that federal prosecutors were expected to comply with state ethics rules. Congress later codified that principle in federal law.
“It was really an ugly situation under Thornburgh,” Iacopino says. “DOJ lawyers were contacting defendants and not telling their counsel about it. That’s exactly the type of conduct the ethics rules are meant to prevent.”
Guerriero says the DOJ has the power to supervise and discipline its own attorneys, but he adds that the power to supersede state authority is another matter, and that a future legal fight could be a costly distraction.
“Every legal fight costs money,” he says. “If the attorneys at the ADO have to fight this battle, they can’t be working on other more productive matters.”
Law Governing DOJ Attorneys
In 1998, Congress enacted 28 U.S.C. § 530B, often called the “McDade Amendment,” which states: “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.”
Iacopino says the proposed regulation appears to conflict directly with that statute.
“That’s the language of the law,” he says. “This rule obviously violates that.”
He also raises constitutional concerns.
“Under the proposed regulation, the state bar authority wouldn’t be able to do anything without the permission of the US attorney general,” Iacopino says. “That’s a violation of the Tenth Amendment.”
The Tenth Amendment reserves powers not delegated to the federal government to the states or the people, including professional licensing systems such as state bar associations.
“I believe the current attorney general has political reasons for doing this,” Iacopino adds. “But this isn’t a political issue. It’s about who regulates lawyers and disciplinary systems. It’s a fundamental government issue that goes to the administration of justice.”
If the rule were enacted, Guerriero says, the ADO should “assert its independent authority to regulate and discipline attorneys licensed in New Hampshire.”
While federal attorneys in good standing do not need to be barred in New Hampshire to try cases there, Guerriero cites US District Court District of New Hampshire local rules stating that attorneys are subject to New Hampshire Rules of Professional Conduct.
Section 83.2 states: “The court may at any time revoke such permission for good cause without a hearing and any attorney appearing pursuant to this rule is subject to the disciplinary rules and jurisdiction of this court.”
“We could be heading for a standoff,” Guerriero says. “You’d expect [the DOJ] to get this through if they want to get it through, but I haven’t seen this kind of conflict in New Hampshire. That’s not to say it couldn’t happen.”
New Hampshire’s Discipline System
The attorney discipline system is governed by the New Hampshire Supreme Court (NHSC) through rules establishing the ADO, a complaint screening committee, hearings panels, and the Professional Conduct Committee (PCC).
The 12-member PCC – made up of eight lawyers and four non-lawyers – reviews disciplinary cases, can impose sanctions including suspensions, and refers more serious cases to the NHSC.
Iacopino says cases involving criminal prosecutors rarely reach formal disciplinary hearings in New Hampshire.
“In my experience, very few disciplinary complaints that get to a hearing involve criminal law,” he says. “Most of them involve civil representation. But that’s New Hampshire. In larger jurisdictions like the Southern District of New York or Los Angeles, you might see more.”
Recent Controversies
The debate over federal oversight comes as disciplinary complaints against DOJ attorneys have become more visible.
In Washington, the District of Columbia Bar has filed ethics charges against DOJ attorney Ed Martin over a letter he sent to Georgetown University Law Center questioning its diversity and inclusion curriculum and directing prosecutors not to hire students from the school.
Separately, a federal judge in North Carolina recently ordered senior officials in a US attorney’s office to appear in court to explain why sanctions should not be imposed after prosecutors submitted filings containing fabricated quotations and misleading statements about legal precedents.
“Those are exactly the types of things that could be worthy of disciplinary action,” Iacopino says. “But under the proposed regulation, the North Carolina bar authority wouldn’t be able to do anything without the permission of the US attorney general.”
DOJ Defends Proposal
The DOJ argues the rule would not eliminate state authority but instead clarify the process when federal attorneys are accused of misconduct tied to official duties.
According to the proposal, DOJ attorneys would still be subject to state disciplinary authority, but federal review would occur first to determine whether alleged conduct falls within federal responsibilities.
The department said the rule would “better reflect the existing balance of responsibilities” between state bars and the federal government.
The proposal also notes that some recent ethics complaints against DOJ officials have been filed by political activists.
Still, critics say allowing the attorney general to halt or delay state investigations could undermine accountability.
Public Comment Period
The DOJ’s proposed rule is currently open for public comment through April 6 via the federal government’s online rulemaking portal.
As of March 13, more than 30,000 comments were submitted.
Some commenters warned the change would weaken oversight of government lawyers. Others expressed broader concerns about accountability and transparency.
Despite the volume of feedback, federal agencies are not required to adopt public recommendations when finalizing regulations, Iacopino says, adding that the proposal raises fundamental questions about the structure of legal accountability in the United States.
“We have a system in this country where the states license and regulate attorneys,” he says, noting he has recommended to the NHBA’s Board of Governors to oppose the rule. “When the federal government steps in and tries to control that process, it creates serious legal and constitutional problems.”