The Legal Ethics Zombie: How the DOJ’s Proposed Rule Revives a Decades-Old Campaign to Shield Government Lawyers from State Bar Oversight

In the fall of 1992, a federal district judge in New Mexico sat down to write an opinion that would become one of the more quotable passages in the annals of attorney discipline. The case involved a Department of Justice attorney who had invoked something called the Thornburgh Memorandum—a 1989 directive from Attorney General Richard Thornburgh asserting that federal prosecutors could disregard certain state ethics rules when those rules conflicted with their federal duties. The DOJ attorney cited the memorandum in an attempt to derail a state bar disciplinary proceeding against him. The judge, unimpressed, wrote that “the insolence with which the Government promotes this as official policy irresponsibly compromises the very trust which empowers it to act,” and added, for good measure, that it fell to the court “to disabuse the Government of its novel self-conceived notion that Government lawyers, unlike any other lawyer, may act unethically.”

That was thirty-four years ago. The judge’s admonition appears not to have taken.

On March 5, 2026, the Department of Justice published a Notice of Proposed Rulemaking in the Federal Register that would, if finalized, allow the Attorney General to interpose the Department between state bar disciplinary authorities and the DOJ’s own lawyers. Under the proposed rule, when a complaint is filed with a state bar alleging that a current or former DOJ attorney violated ethics rules while performing federal duties, the Department would have “the right to review the allegations in the first instance” and would request that the state bar “suspend any parallel investigations until the completion of the Department’s review.”

The proposal—published under Docket No. OAG199, styled as an amendment to 28 CFR Part 77—has drawn immediate and widespread condemnation from bar associations, legal ethics scholars, former federal prosecutors, and civil liberties organizations. More than 30,000 public comments were submitted within the first two weeks of the 30-day comment period, which closes on April 6. The New York State Bar Association has denounced the rule. The D.C. Bar’s rules committee chair has called it “incredibly concerning” and “inconsistent with all precedents.” Former United States Attorneys from both parties have called it an attempt to place DOJ lawyers above the law. And legal scholars who study the history of federal lawyer regulation have recognized the proposal for what it is: the latest iteration of a decades-long campaign by the Department of Justice to exempt its lawyers from the same ethical oversight that governs every other attorney in the country.

The Zombie That Will Not Die

To understand the proposed rule, one must understand the history it revives. Brad Wendel, a Cornell Law School professor who specializes in legal ethics, has aptly described the DOJ’s resistance to state bar discipline as “the legal ethics issue that will never die”—a zombie that has risen from the grave in every administration since at least Jimmy Carter’s.

The story begins, in its modern form, with a 1980 opinion from the Office of Legal Counsel concluding that “state bar associations may not, consistent with the Supremacy Clause, impose sanctions on a government attorney who has acted pursuant to his federal law enforcement responsibilities.” This was a bold claim: that the federal government’s interest in law enforcement superseded the states’ authority to regulate the lawyers who practiced within their borders.

The claim was tested in 1988, when the Second Circuit decided United States v. Hammad, a case involving a federal prosecutor who had wired a cooperating witness and sent him to speak with the target of a fraud investigation—a target the prosecutors knew had retained counsel. The anti-contact rule, codified as Rule 4.2 of the Model Rules of Professional Conduct, prohibits a lawyer from communicating with a represented person without the consent of that person’s lawyer. The government argued that the rule did not apply to federal prosecutors acting in their official capacity. The Second Circuit disagreed, holding that the ethical prohibition was not coextensive with the Sixth Amendment and that prosecutors could “overstep the already broad powers” of their office.

The Hammad decision alarmed the Department of Justice. While the appeal was pending, Attorney General Dick Thornburgh issued his now-infamous memorandum—the Thornburgh Memo—to all DOJ lawyers, asserting a conflict preemption theory: where state ethics rules interfered with federal law enforcement responsibilities, the Supremacy Clause rendered the state rules inapplicable. The memo specifically targeted the anti-contact rule, arguing that it should not be permitted to “cripple federal investigative techniques.”

The legal profession reacted with something approaching fury. Defense attorneys argued the memo was an invitation to prosecutorial abuse. Bar associations called it an assault on the rule of law. And in In re Doe, the New Mexico district court issued the withering opinion quoted above, holding that the Thornburgh Memo could not override state disciplinary authority and that the idea of placing discretion for a rule’s enforcement “solely in the hands of those governed by it not only renders the rule meaningless, but the notion of such an idea coming from the country’s highest law enforcement official displays an arrogant disregard for and irresponsibly undermines ethics in the legal profession.”

The court’s opinion concluded with language that resonates powerfully in 2026:

“In holding to ethical standards, an attorney for the Government cannot be a mere minion of the Government. . . . [W]hen lawyers subordinate themselves to the Government and conform their conduct to governmental policy, they are no longer free, but are reduced to vassals as in a totalitarian state.”

From Thornburgh to Reno to McDade

The Clinton administration inherited the Thornburgh Memo and, while it did not share Thornburgh’s ideological commitments, proved no more enthusiastic about state bar oversight of federal prosecutors. Rather than rely on a unilateral executive assertion, the Clinton DOJ promulgated formal regulations—the “Reno Rules,” 28 CFR § 77.10(a)—that attempted to define the scope of state ethics rules as applied to federal attorneys. Among other things, the Reno Rules would have narrowed the anti-contact rule’s application to organizational parties, limiting it to communications with members of a corporation’s “control group.”

The Eighth Circuit, in United States ex rel. O’Keefe v. McDonnell Douglas Corp., 132 F.3d 1252 (1998), struck down the Reno Rules, holding that the Attorney General lacked the statutory authority to issue them. The court’s reasoning was straightforward: Congress had not delegated to the Attorney General the power to determine which state ethics rules applied to federal prosecutors, and the AG could not create that power by fiat.

Congress, meanwhile, had grown tired of the back-and-forth. In 1998, as part of an omnibus appropriations bill, it enacted 28 U.S.C. § 530B—the McDade Amendment, named for Representative Joseph McDade of Pennsylvania. The statute’s language is unambiguous:

“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.”

The emphasis on “to the same extent and in the same manner as other attorneys” was deliberate. Congress intended to settle the question definitively: DOJ lawyers are subject to the same ethical rules, and the same disciplinary processes, as every other lawyer in the state where they practice. No exceptions. No executive override. No Supremacy Clause workaround.

For nearly three decades, the McDade Amendment appeared to have resolved the issue. Until now.

The Bondi Rule: What It Actually Says

The 2026 proposed rule—which, in keeping with the tradition of naming these controversies after the incumbent Attorney General, might be called the Bondi Rule—is, as Professor Wendel notes, “actually reasonably well thought out and put together by, you know, actual lawyers.” Unlike some of the more improvisational legal actions of the current administration, the proposed rule was published through the formal rulemaking process, with a Federal Register notice, a defined comment period, and citations to statutory authority.

The rule’s core mechanism works as follows: when a state bar disciplinary authority opens an investigation into a current or former DOJ attorney based on allegations that the attorney violated ethics rules “while engaging in that attorney’s duties for the Department,” the Attorney General (or a designee) “will have the right to review the complaint and the allegations in the first instance.” The Department will then request that the state bar authority “suspend any parallel investigations” until the DOJ’s internal review, conducted through the Office of Professional Responsibility, is completed.

The proposal explicitly contemplates that current DOJ attorneys will be required to notify the Office of Professional Responsibility when a bar complaint is filed against them. Former DOJ attorneys are “encouraged” to do so but are not required to comply. If a former employee declines to notify OPR and the Attorney General learns of the complaint independently, the proposed rule reserves the AG’s right to “choose to participate consistent with the relevant State’s law.”

The most aggressive provision is buried in the details: the proposed rule allows the Department to take “appropriate action” against any state bar disciplinary authority that refuses to suspend its investigation pending the DOJ’s review. The nature of this “appropriate action” is not specified, but the implicit threat is clear: the federal government is prepared to use its considerable legal resources to challenge state disciplinary authorities that assert their jurisdiction over DOJ lawyers.

The McDade Problem

The proposed rule’s central legal vulnerability is 28 U.S.C. § 530B. The McDade Amendment requires DOJ attorneys to comply with state ethics rules “to the same extent and in the same manner as other attorneys.” If a private attorney in New York is subject to investigation by the New York Attorney Grievance Committee without the intervention of any federal authority, then—under the plain language of the statute—a DOJ attorney in New York should be subject to the same process.

The DOJ’s response to this problem is clever, if not entirely convincing. The proposed rule’s preamble argues that the McDade Amendment addresses only the substantive content of the applicable rules—that is, which ethical rules apply to DOJ attorneys—not the institutional mechanism for enforcing those rules. On this theory, DOJ attorneys remain subject to the same rules of professional conduct as private attorneys, but the process by which those rules are enforced may be different, because the Department has a legitimate interest in reviewing allegations of misconduct that arose in the course of federal duties.

This is the kind of argument that gives legal academics employment. It has a certain formal elegance: the statute says “subject to State laws and rules,” and one might argue that the disciplinary process is not itself a “law” or “rule” within the meaning of the statute. But the argument runs headlong into the statute’s other operative phrase: “to the same extent and in the same manner as other attorneys.” If a private lawyer is subject to investigation without the intervention of a federal gatekeeper, then a DOJ lawyer who is not subject to the same process is not being treated “in the same manner.”

Michael Iacopino, a member of the hearings committee of New Hampshire’s Attorney Discipline Office, put it more bluntly: “That’s the language of the law. This rule obviously violates that.” He also raised a Tenth Amendment concern: the regulation of professional licensing—including the licensing and discipline of attorneys—has traditionally been a state function, and a federal regulation that effectively strips state disciplinary authorities of the ability to investigate DOJ lawyers without federal permission may exceed the federal government’s enumerated powers.

The Political Context: Bondi, Blanche, and the “War” on Oversight

The proposed rule cannot be understood apart from the political context in which it was issued. In November 2025, Deputy Attorney General Todd Blanche delivered a speech at a Federalist Society event in which he declared that the Department of Justice was in a “war” against “rogue activist judges” and state bar associations. Blanche specifically targeted the D.C. Bar, which he described as “one of the most activist, obnoxious bars” for pursuing ethics complaints against conservative lawyers. He vowed to curb bar associations’ oversight powers by limiting the Department’s cooperation with disciplinary referrals and by hiring outside counsel to fight disciplinary actions against DOJ attorneys.

The New York State Bar Association responded with a statement that deserves quotation at length. “The New York State Bar Association denounces Deputy Attorney General Todd Blanche’s declaration of ‘war’ on the judiciary and bar association disciplinary bodies,” said NYSBA President Kathleen Sweet. “Any lawyer who abandons their oath to the constitution and who intentionally misrepresents facts or law in court is properly subject to discipline, even if they work for the Department of Justice. The judiciary is a coequal branch of our government. It is not an inferior entity to be treated with disdain as an irksome impediment to the will of the executive branch.”

Blanche’s rhetoric—and the proposed rule that followed it—arrived in the wake of multiple ethics complaints filed against senior DOJ officials. In 2025, more than seventy lawyers and former judges, including two former Florida Supreme Court justices, requested that the Florida Bar investigate Attorney General Pam Bondi for allegedly directing DOJ lawyers to violate their ethical obligations while implementing the administration’s policies. The Florida Bar declined to investigate, citing a policy against taking action against sitting officers appointed under the U.S. Constitution while they are in office. The Florida Supreme Court refused to compel the Bar to open an investigation.

Separately, the Legal Accountability Center filed a complaint against Blanche himself with the New York Attorney Grievance Committee, alleging multiple ethics violations. The specifics of the complaint have not been publicly detailed, but the filing represents the rare spectacle of the Deputy Attorney General of the United States—the nation’s second-highest law enforcement official—being the subject of a state bar ethics complaint.

Against this backdrop, the proposed rule reads less as a principled reassertion of federal authority over the conduct of federal attorneys and more as a defensive maneuver by an administration that has found itself on the receiving end of the disciplinary process it seeks to curtail. As Stacey Young, executive director of Justice Connection, a support network for DOJ alumni, observed: “They purged the head of OPR and the ethics office. They mock congressional oversight and slander whistleblowers. Now they want to be unaccountable to state bars.”

The Office of Professional Responsibility: Can the Fox Guard the Henhouse?

The proposed rule’s viability depends heavily on the credibility of the institution that would conduct the internal review: the Department of Justice’s Office of Professional Responsibility. OPR was established in 1975 to investigate allegations of misconduct by DOJ attorneys and to report its findings to the Attorney General. It has, over the decades, conducted significant investigations—including a notable review of the DOJ lawyers who authored the Bush administration’s “torture memos”—and has occasionally imposed meaningful consequences, including referrals to state bar authorities.

But OPR’s independence has always been contingent on the goodwill of the Attorney General it reports to. It is not a statutory office with independent authority; it exists at the pleasure of the AG and can be expanded, contracted, or redirected at will. And in the current administration, OPR’s credibility has been undermined by what DOJ whistleblower Erez Reuveni, in a March 2026 letter to Congress, described as the department having “decapitated OPR.” According to Reuveni’s complaint, the Trump administration has gutted OPR’s investigative capacity, removing experienced investigators and replacing them with appointees more sympathetic to the administration’s priorities.

The implications for the proposed rule are significant. If OPR is the body that will conduct the “internal review” of ethics complaints against DOJ attorneys—and if that review will determine whether the state bar investigation may proceed—then the independence and competence of OPR is not a secondary consideration but a threshold one. An OPR that lacks the resources, the will, or the independence to conduct rigorous investigations is not a substitute for state bar oversight; it is a mechanism for suppressing it.

Lawyers Defending American Democracy, the nonpartisan organization that filed the ethics complaint against Bondi, highlighted this concern in its response to the proposed rule: “To ensure that this proposal will never provide appropriate discipline of its own lawyers, it offers no timelines under which a state could follow up if the Department of Justice does not. And all of this occurs in an administration that is adept at running out the clock to its own advantage.”

The absence of timelines is, perhaps, the most revealing feature of the proposed rule. Under the current draft, the DOJ could request a state bar to suspend its investigation, conduct its own review for an indefinite period, and never issue findings. The state bar would have no mechanism to compel the DOJ to complete its review, and the DOJ would face no consequence for delay. The practical effect would be to create a procedural black hole into which ethics complaints could disappear.

The Federalism Question: Who Regulates Lawyers?

At the deepest level, the proposed rule raises a constitutional question about the allocation of regulatory authority between the federal government and the states. The regulation of attorneys has, since the founding of the Republic, been understood as a function of state judicial authority. Lawyers are licensed by state supreme courts. They are admitted to practice by state bar associations operating under the authority of those courts. They are disciplined by state disciplinary bodies that answer to the judiciary, not the executive.

This arrangement is not accidental. It reflects the principle that the practice of law is intimately connected with the administration of justice, and that the judicial branch—not the executive or the legislature—is best positioned to oversee those who participate in the judicial process. When a lawyer lies to a court, it is the court that is harmed. When a lawyer steals client funds, it is the judicial system’s credibility that is damaged. When a lawyer neglects a client’s case, it is the promise of justice that is broken.

The DOJ’s proposed rule challenges this arrangement by asserting an executive branch prerogative to intervene in judicial branch disciplinary processes. The theory—that the Attorney General has a supervisory interest in the conduct of DOJ attorneys—is not without foundation. The AG does have statutory authority to supervise DOJ litigation under 28 U.S.C. § 519. But supervisory authority over employees is a different thing from the authority to shield those employees from external accountability mechanisms.

A corporation’s CEO supervises the corporation’s employees. That does not mean the CEO can prevent state regulatory authorities from investigating those employees for violations of state law. A hospital administrator supervises the hospital’s physicians. That does not mean the administrator can interpose the hospital between a physician and the state medical board. The proposed rule asks us to accept a proposition that, stated in its most general form, would be rejected in virtually every other regulatory context: that an employer’s supervisory interest in its employees’ conduct justifies the employer’s intervention in independent regulatory proceedings against those employees.

The North Carolina Incident and Other Recent Flashpoints

The proposed rule did not emerge in a vacuum. In the months leading up to its publication, a series of incidents involving DOJ attorneys had drawn public attention to the question of prosecutorial ethics—and had generated precisely the kind of bar complaints that the proposed rule seeks to manage.

In one notable episode, a federal judge in North Carolina ordered senior officials in a U.S. 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. The incident was widely reported as an example of the kind of carelessness—or worse—that the disciplinary system is designed to address. “Those are exactly the types of things that could be worthy of disciplinary action,” observed Michael Iacopino of New Hampshire’s Attorney Discipline Office. “But under the proposed regulation, the North Carolina bar authority wouldn’t be able to do anything without the permission of the U.S. attorney general.”

In Washington, the D.C. Bar 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. The charges—which involve questions about whether Martin’s actions constituted conduct prejudicial to the administration of justice—are precisely the kind of case that the proposed rule would allow the Attorney General to intercept.

The cumulative effect of these incidents is a picture of a Department of Justice whose attorneys are, by any measure, generating an unusual volume of ethics concerns—and whose leadership, rather than addressing those concerns through strengthened internal oversight, has chosen to seek the power to suppress external oversight instead. This is the institutional equivalent of a corporation responding to a wave of consumer complaints not by improving its products but by lobbying to shut down the Better Business Bureau.

The Comparative Perspective: How Other Countries Handle Government Lawyer Ethics

The question of whether government lawyers should be subject to the same ethical oversight as private practitioners is not unique to the United States. In the United Kingdom, government lawyers who are members of the Law Society or the Bar Council are subject to the same disciplinary processes as all other solicitors and barristers. The Crown Prosecution Service has its own internal quality assurance mechanisms, but these supplement rather than replace the external regulatory framework. No mechanism exists by which the government can intercede to prevent the Solicitors Regulation Authority from investigating a government solicitor.

In Canada, the situation is similar: federal government lawyers are members of their provincial law societies and are subject to provincial disciplinary authority. The federal government does not claim the right to interpose itself between its lawyers and the provincial regulators. In Australia, government solicitors are regulated by the same state and territory legal services commissions that oversee private practitioners.

The proposed DOJ rule, in other words, would make the United States an outlier among common-law democracies in the degree to which it shields government lawyers from independent ethical oversight. This is not a comparison that flatters the proposal’s architects.

What Happens Next

The public comment period closes on April 6, 2026. The volume of comments—over 30,000 as of mid-March—is extraordinary for a rulemaking that involves the relatively technical question of attorney discipline. The volume reflects both the genuine public interest in government accountability and the organized opposition of legal professionals who view the rule as a threat to the independence of the disciplinary process.

After the comment period closes, the Department of Justice will review the comments and decide whether to finalize the rule, modify it, or withdraw it. If finalized, the rule will almost certainly face legal challenge. The most likely challengers would be state bar associations and legal advocacy organizations, arguing that the rule conflicts with 28 U.S.C. § 530B, exceeds the Attorney General’s rulemaking authority, and violates the Tenth Amendment’s reservation of regulatory power to the states.

The outcome of any legal challenge is difficult to predict. The current Supreme Court has shown a willingness to defer to executive authority in some contexts while also demonstrating, in decisions like West Virginia v. EPA, a skepticism of agency actions that push beyond clear statutory authority. The proposed rule’s conflict with the McDade Amendment—a statute specifically enacted to resolve the very issue the rule seeks to reopen—may prove a significant obstacle.

Opinion: The Rule Should Be Withdrawn

The proposed rule is, at its core, an attempt to solve a problem that does not exist by creating one that does. The DOJ claims that state bar disciplinary processes have been “weaponized” by “political activists.” But the very fact that complaints have been filed against senior DOJ officials is not evidence of weaponization; it is evidence that the system is working. When government lawyers make representations to courts that are later found to be false; when government lawyers file documents containing fabricated quotations; when government lawyers direct their subordinates to take actions that conflict with their ethical obligations—these are precisely the circumstances in which state bar complaints are supposed to be filed.

The complaint that disciplinary processes are being used for “political” purposes betrays a fundamental misunderstanding of how attorney discipline works. State bar disciplinary authorities do not impose sanctions based on the political alignment of the complaint. They impose sanctions based on evidence that the attorney violated the rules of professional conduct. A complaint filed by a political adversary is subject to the same evidentiary requirements as a complaint filed by a former client. If the evidence supports a finding of misconduct, the attorney’s political affiliation is irrelevant. If the evidence does not support such a finding, the complaint will be dismissed—as the vast majority of bar complaints are.

The proposed rule’s most insidious feature is not any specific provision but its underlying premise: that DOJ lawyers are different from other lawyers, that their proximity to federal power entitles them to a different disciplinary process, and that the ordinary mechanisms of accountability that apply to the 1.3 million other lawyers in the United States are insufficient or inappropriate for the lawyers who work for the Department of Justice.

This premise is wrong. It was wrong when the Office of Legal Counsel asserted it in 1980. It was wrong when Thornburgh memorialized it in 1989. It was wrong when the Reno Rules attempted to codify it in the 1990s. And it is wrong now. The principle established by the McDade Amendment—that government lawyers are subject to the same ethical rules and the same disciplinary processes as every other lawyer—is not a procedural technicality. It is a substantive commitment to the proposition that no one, not even the Attorney General of the United States, is above the ethical obligations that define the legal profession.

The judge in In re Doe got it right in 1992: “When lawyers subordinate themselves to the Government and conform their conduct to governmental policy, they are no longer free, but are reduced to vassals as in a totalitarian state.” That warning has lost none of its force in the intervening decades. If anything, it has become more urgent.

The proposed rule should be withdrawn. If the Department of Justice is concerned about frivolous bar complaints—and there may be legitimate complaints about the filing of bad-faith grievances—the appropriate remedy is to work with state bar authorities to improve the screening and triage of complaints, not to interpose the DOJ as a gatekeeper with the power to block investigations indefinitely and without accountability.

The legal profession’s claim to self-governance depends on its willingness to hold all lawyers accountable, without regard to the power of their employer. A rule that exempts government lawyers from that accountability does not protect federal interests. It undermines the rule of law itself—the very thing the Department of Justice is supposed to defend.

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The Ethics Reporter provides analysis of legal ethics cases and professional responsibility matters. The views expressed in opinion sections are those of the editorial staff.