A Troubling Pattern: DOJ’s Continued Bid to Place Its Attorneys Beyond Ethical Oversight

The Department of Justice’s attempts to shield its attorneys from ethical oversight leveled up last week when DOJ filed a lawsuit against the District of Columbia and the D.C. Court of Appeals’ attorney disciplinary authorities. The suit relates to the D.C. Bar’s disciplinary proceedings against former DOJ attorney Jeffrey Clark.

You may remember Clark as one of the attorneys involved in President Trump’s attempt to undermine the 2020 election results. He drafted a letter, on Justice Department letterhead, stating that DOJ had “identified significant concerns” in Georgia during the 2020 election. Even after Justice Department leadership refused to sign the letter, Clark pressed for it to be sent.

The D.C. attorney disciplinary authorities found that Clark violated Rule 8.4(a) (violating a Rule of Professional Conduct) by attempting to violate Rule 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation). They recommended Clark be disbarred.

In response, DOJ sued the disciplinary bodies, the D.C. bar’s disciplinary counsel, and the D.C. Court of Appeals itself, claiming Clark’s actions are not subject to ethical oversight because he was only giving internal advice and the letter was pre-decisional. DOJ further contends that the bar disciplinary proceedings against Clark were “weaponized.”

It has long been recognized that DOJ attorneys are bound by the ethical obligations of at least the bar where they are admitted, and subject to its disciplinary actions. Congress also made clear that government attorneys are subject to the laws and rules for the State where they practice. See McDade Amendment, 28 U.S.C. § 530B (“An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys … to the same extent and in the same manner as other attorneys in that State.”)

That is why DOJ’s lawsuit is so problematic. Clark, like every attorney licensed by the D.C. Bar (and practicing in D.C.), is—and should be—subject to the D.C. attorney disciplinary authorities. There has never been a carve-out from ethical oversight for government attorneys giving internal or pre-decisional advice; we should not start now.

The present lawsuit continues a troubling pattern of DOJ trying to insulate its attorneys from ethical oversight. In March, DOJ issued a proposed rule that would require bar disciplinary authorities to defer to internal Justice Department investigations for complaints and allegations against DOJ attorneys. These actions continue to erode public trust in the Department of Justice, and if successful, will insulate federal prosecutors—who were traditionally held to a higher standard—from any outside ethical oversight.