Comments in Response to the DOJ Proposed Rule

Comments in Response to the DOJ Proposed Rule "Review of State Bar Complaints and Allegations Against Department of Justice Attorneys," Notice of proposed rulemaking, 91 FR 10780 (3/5/2026), available at https://www.govinfo.gov/content/pkg/FR-2026-03-05/pdf/2026-04390.pdf

From: Rick Neifeld, Neifeld IP Law, PLLC

9112 Shearman Street, Fairfax, VA 22032

I. Summary

In summary, the proposed rule 77.5: (1) is ultra vires, (2) is a politically motivated partisan attempt to avoid accountability of the Attorney General and her appointees, and (3) mis-characterizes the factual background supporting the reasoning, with citation to no evidence.

The effect of proposed rule 75.5(b), would be to bias state bars against disciplining DOJ attorney for fear of being sued by the DOJ. The de facto effect of 77.5(a) would place DOJ reviews of misconduct into a black hole, thereby by making the time delay, after which a state bar would be allowed to initiate an investigation or misconduct proceeding, infinite.

This proposed rule would facilitate further corruption of the rule of law, and should be abandoned.

II. Background, Former DOJ guidance and Congress Lawmaking

In the 1980s, the DOJ promulgated guidance for its attorneys regarding applicable disciplinary rules. See for example "State Bar Disciplinary Rules As Applied to Federal Government Attorneys," (DOJ 8/2/1985) available (as of 3/11/2026) at https://www.justice.gov/file/150631/dl?inline. In 1998, and perhaps in response, Congress added 28 USC 530B, which seems nullified the 8/2/1985 internal DOJ guidance.

530B reads:

§530B. Ethical standards for attorneys for the Government

(a) 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.

(b) The Attorney General shall make and amend rules of the Department of Justice to assure compliance with this section.

(c) As used in this section, the term "attorney for the Government" includes any attorney described in section 77.2(a) of part 77 of title 28 of the Code of Federal Regulations and also includes any independent counsel, or employee of such a counsel, appointed under chapter 40.

(Added Pub. L. 105–277, div. A, §101(b) [title VIII, §801(a)], Oct. 21, 1998, 112 Stat. 2681–50 , 2681-118.) Statutory Notes and Related Subsidiaries Effective Date Pub. L. 105–277, div. A, §101(b) [title VIII, §801(c)], Oct. 21, 1998, 112 Stat. 2681–50 , 2681-119, provided that: "The amendments made by this section [enacting this section] shall take effect 180 days after the date of the enactment of this Act [Oct. 21, 1998] and shall apply during that portion of fiscal year 1999 that follows that taking effect, and in each succeeding fiscal year."

This statutory section mandates that government attorneys are subject to state laws and rules governing their conduct "to the same extent and in the same manner as other attorneys in that State." However, that section does not prevent state bars from distinguishing between private and government attorneys.

In 1999, in response to 530B, the DOJ promulgated "Ethical Standards for Attorneys for the Government," Interim final rule with request for comments, at 64 FR 19273 (4/20/1999), available at https://www.govinfo.gov/content/pkg/FR-1999-04-20/pdf/99-9845.pdf. The stated purpose of this rule was " to meet the requirement of section 530B(b)." Id., at 19273.

Now, on 3/5/2026, the DOJ published the proposed regulation 28 CFR 77.5.

III. Proposed 28 CFR 77.5 - The Proposed Regulation

This proposed rule reads in relevant part:

77.5 Review of state bar complaints and allegations against current and former attorneys for the government.

(a) Before the bar disciplinary authorities of the States, the Territories, or the District of Columbia undertake any investigative steps that seek information or otherwise require participation from an attorney for the government in response to allegations that a current or former attorney for the government violated a rule of ethical conduct while engaging in that attorney's duties for the Department, the Attorney General shall have the right to review the allegations in the first instance. The Attorney General shall have this right whether the allegations are made in a complaint filed by a third party or the bar disciplinary authorities open an investigation into the allegations without a complaint. The Attorney General or her designee shall notify the appropriate bar disciplinary authorities whether she intends to exercise her right to review the allegations and, if she does, she or her designee shall request that the bar disciplinary authorities suspend any parallel investigations or disciplinary proceedings until the completion of the review. If the Attorney General decides not to complete her review, she or her designee shall notify the appropriate bar disciplinary authorities so they may resume their investigations or disciplinary proceedings. The Attorney General or her designee shall inform the appropriate bar disciplinary authorities of the completion of her review. As appropriate, the Attorney General or her designee shall also inform the appropriate bar disciplinary authorities of the results of her 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.

(b) Should the relevant bar disciplinary authorities refuse the Attorney General's request, the Department shall take appropriate action to enforce this regulation or to prevent the bar disciplinary authorities from interfering with the Attorney General's review of the allegations.

IV. Proposed 28 CFR 77.5 - Is Ultra Vires

Congress provided no authority for the DOJ to impede a state bar organization's deliberations on attorney misconduct.

In the proposed regulation, the language "the Attorney General shall have the right to review the allegations in the first instance" is a substantive change in the law, because it necessarily derogates the right of the state bar organizations' right to review the allegations in the first instance.

The language "The Attorney General or her designee shall notify the appropriate bar disciplinary authorities whether she intends to exercise her right to review the allegations" is ultra vires, because it fails to specify a time limit for the Attorney General (AG) to make the notification that the AG is not exercising its right and thereby returning jurisdiction to the state bar organization.

The language "The Attorney General or her designee shall inform the appropriate bar disciplinary authorities of the completion of her review" is ultra vires, because it fails to specify a time limit for the AG to so inform, thereby returning jurisdiction to the state bar organization.

The language "the Department shall take appropriate action to enforce this regulation or to prevent the bar disciplinary authorities from interfering with the Attorney General's review of the allegations" is ultra vires, because Congress provided the DOJ no authority to impede a state bar organization's deliberations.

IV. The DOJ Has No Authority to Sue State Bar Organizations

Section "E. Authority for the Department To Enforce State Ethics Rules" in the proposed rule package states in part:

The McDade Amendment provides limited authority for State bars to regulate Department lawyers by requiring those attorneys to conform to the same substantive standards of conduct as non-Federal attorneys in the States in which they are practicing, where compliance with the State rules does not interfere or conflict with Federal law.

That statement is a clear mis-characterization of the McDade Amendment. The McDade Amendment includes 28 USC 530B quoted above. Instead, 28 USC 530B states:

This law in no way limits "authority for State bars to regulate Department lawyers." Instead, it imposes on DOJ attorneys the substantive state laws and rules in each State where such attorney engages in that attorney's duties.

Section "E. Authority for the Department To Enforce State Ethics Rules" in the proposed rule package states in part:

... because Congress did not expressly confer to the States enforcement authority, the statute otherwise preserves the authority of the Attorney General to enforce those substantive standards. See Neagle, 135 U.S. at 60-62.

This reliance upon Neagle, at 60-62, frankly, is absurd. Neagle, at 60-62 reiterates the supremacy clause, holding that "the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it." But the DOJ is a department, and a department does not have, by regulation drafting, the power to make substantive law unless that power is granted by Congress. It cannot make up its own power by a strained reading of the statute. Utility Air Regulatory Group v. EPA, 573 US 302 (2014), at 2446 ("We reaffirm the core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate."). And nowhere does 530B even suggest a grant of power to make substantive law. Instead, 530B refrained the DOJ and its former guidance memo, from infringing on the state laws and regulations regulating attorney conduct. Instead it merely required that government attorneys be regulated by the state laws and rules. The only rational reading of 530B is that it preserved the rights of the pre-existing regulatory bodies which were the state bars and the DOJ's own pre-existing internal attorney regulatory process.

V. The DOJ Motivation is Partisan and it Has no Facts to Stand On

Section D in the proposed rule package is subtitled "D. Prioritizing Attorney Discipline and Ending the Weaponization of the Bar Complaint and Investigation Process" states in most relevant part:

Second, over the past several years, political activists have weaponized the bar complaint and investigation process. For example, political activists have filed bar complaints against senior Department officials, including the Deputy Attorney General, the former Acting Deputy Attorney General, the Deputy Assistant Attorney General for the Federal Programs Branch of the Civil Division, and the former interim United States Attorney for the District of Columbia, as well as career Department of Justice attorneys. Even more troubling than the recent spate of State bar complaints is the willingness of some State bar disciplinary authorities to give credence to such complaints. Recently, for example, certain State bar disciplinary authorities have undertaken investigations of Department attorneys without notifying and coordinating with OPR.

No evidence, no statistics, support this contention. First, "weaponized" implies that filed bar complaints were meritless. A BAR complaint raising actual misconduct cannot be a weapon, since it is the right and obligation of attorneys to report misconduct, and state bar organization an DOJ's internal regulatory departments to review and act upon them. No evidence is presented to support the conclusion that whatever bar complaints were filed, were meritless. Second, the assertion "over the past several years" lacks specificity, and no citation to supporting evidence. More specifically, there is no assertion that the "past several years" covers anything other than the time since Pam Bondi was approved by the Senate as the AG for the DOJ. Public reports since then, of corruption at the DOJ are rampant. Including indictment of Trump's political enemies, appoint of DAs that would do so, granting of pardons to criminals without a justifiable basis for their pardons, and grant of pardons tied in some manner to donations to Trump associated or co-owned businesses. Many of these activities have led to BAR complaints against officials of the Trump administration. As even stated in Section D, above: "For example, political activists have filed bar complaints against senior Department officials, including the Deputy Attorney General, the former Acting Deputy Attorney General, the Deputy Assistant Attorney General for the Federal Programs Branch of the Civil Division, and the former interim United States Attorney for the District of Columbia, as well as career Department of Justice attorneys."

However, there is no corresponding evidence of mass corruption of the DOJ under prior administrations since the 1999 enactment of 530B.

In other words, the proposed rule is an attempt to shield accused wrong doers, from justice.

Section D in the proposed rule package is subtitled "D. Prioritizing Attorney Discipline and Ending the Weaponization of the Bar Complaint and Investigation Process" states in another relevant part:

This unprecedented weaponization of the State bar complaint process risks chilling the zealous advocacy by Department attorneys on behalf of the United States, its agencies, and its officers. That chilling effect, in turn, would interfere with the broad statutory authority of the Attorney General to manage and supervise Department attorneys.

However, this section fails to point out the benefits of this chilling effect, of preventing misconduct by DOJ attorneys, and that an attorney's first loyalty is to the rule of law and the courts, and not political appointees.

Truly, Richard Neifeld, Neifeld IP Law, PLLC

VA Bar registration 37310

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