US Justice Department should stay out of states’ own ethics investigations | Opinion
Virtually every state has adopted the American Bar Association’s Model Rules of Professional Conduct — Missouri and Kansas included. These provide standards of ethical conduct for lawyers, who are admitted to the bar of particular states. The standards prohibit conduct such as knowingly making a “false statement of material fact” or engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation.”
Federal government lawyers are subject to legal discipline from the state bar in which they hold their law licenses. State bars investigate ethics complaints and can sanction lawyers for violating state ethical rules. In fact, a federal statute reads: “An attorney for the Government shall be subject to State laws and 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.”
State bar committees thus can proceed against Department of Justice attorneys admitted to that state’s bar. But on March 4, the federal government proposed a new rule providing that before a DOJ attorney may participate in a state bar disciplinary investigation, the DOJ would have the right to review the state allegations and request bar authorities to suspend proceedings until the completion of a DOJ review. The proposed rule also provides that the DOJ shall inform the state bar of the results of the federal 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.”
This proposed rule is a solution looking for a problem, and it would undermine public confidence in the legal disciplinary process. The rule would also delay the resolution of disciplinary complaints — to the detriment of the attorney involved and the clients and the public that should be protected by the disciplinary process. The proposal also flies in the face of the federal statute subjecting federal attorneys to state ethical rules “to the same extent and in the same manner as other attorneys in that State.”
The bar disciplinary process protects current and future clients, and the public, from lawyers who violate state disciplinary rules. Interjecting the DOJ into state disciplinary proceedings would permit the DOJ to put a thumb on the scales and impact attorney disciplinary proceedings. Most DOJ attorneys will in the future represent other clients, who should be protected by state disciplinary processes. But additional DOJ proceedings would simply further the perceived interest of the Justice Department and the federal entitles it represents.
Even if the Justice Department did not have an interest in the outcome of attorney disciplinary proceedings, federal intervention into state disciplinary processes would delay the conclusion of those processes. The proposed rule has no time limits for DOJ to decide to undertake its own proceedings, or for the conclusion of investigations or proceedings. Indeed, it would be difficult to mandate deadlines in all cases, because of the different time requirements and practical needs presented by different cases. But it is essential to lawyers, clients and the public that charges be resolved as quickly as possible. Inserting into state bar proceedings a detour through the Department of Justice would delay the resolution of those proceedings in every single case.
The Preamble to the ABA’s Model Rules of Professional Conduct says: “Self-regulation … helps maintain the legal profession’s independence from government domination. An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice.”
For decades, independent state lawyer disciplinary bodies have thoughtfully resolved attorney misconduct complaints. There is no need for, and there are major disadvantages to, centralizing the consideration of attorney complaints before the DOJ, which has a direct interest in how such complaints are resolved. The Department of Justice’s March 4 proposed rule should not be adopted.
R. Lawrence Dessem is dean emeritus and the Timothy J. Heinsz Professor Emeritus of Law at the University of Missouri School of Law in Columbia. He served as trial attorney and senior trial counsel in the Civil Division of the United States Department of Justice during the Carter and Reagan administrations.