To: Office of Attorney General
U.S. Department of Justice
Date: March 31, 2026
Re: Notice of Proposed Rulemaking – Amendments to 28 C.F.R. Part 77 (Professional
Conduct of DOJ Attorneys)
Dear Sir or Madam:
We submit these comments on behalf of Women Lawyers On Guard Action Network, Inc.
(“WLGAN”), a national organization dedicated to advancing democratic values and
promoting ethical legal practice in matters affecting public health, safety, and the rule of
law. As an organization composed primarily of lawyers, we recognize that a just and fair
society depends on all lawyers—including those who represent the government—
adhering to the highest ethical standards. Over the last ten years, WLGAN has focused
on promoting ethical legal practice in areas including professional misconduct in the legal
profession, women’s health and reproductive rights, gender and pay equity, and
adherence to the rule of law.
On March 5, 2026, the Department of Justice (“DOJ” or “Department”) published a Notice
of Proposed Rulemaking titled Review of State Bar Complaints and Allegations Against
Department of Justice Attorneys. The stated rationale—preventing duplicative or
politically motivated investigations—has generated widespread and bipartisan opposition.
The breadth and consistency of that opposition reflect serious concerns about the rule’s
implications for attorney accountability and public trust. WLGAN shares these concerns
and strongly opposes the proposed rule.
Under the proposed rule, the Department would assert authority to review bar complaints
against current or former DOJ attorneys before those attorneys are permitted to
participate in state disciplinary proceedings related to their conduct in federal
proceedings. The Department could also request that state disciplinary authorities
suspend parallel investigations pending completion of the Department’s internal review.
Even more problematic is that the rule purportedly authorizes the Department to seek
suspension of ongoing s…
which DOJ attorneys effectively police themselves. Courts have repeatedly recognized,
however, that attorney discipline is a core state function essential to preserving public
confidence in the legal system. See Middlesex County Ethics Comm. v. Garden State Bar
Ass’n, 457 U.S. 423, 434 (1982); Leis v. Flynt, 439 U.S. 438, 442 (1979). Federal intrusion
into attorney discipline requires a clear statement from Congress because this is an area
of traditional state concern. See Gregory v. Ashcroft, 501 U.S. 452, 460–61 (1991).
Congress has never sought to interfere with this core state function.
The proposed rule also elevates the Department’s internal oversight mechanisms over
independent state disciplinary authority, allowing DOJ attorneys to be judged by offices
that lack structural independence from DOJ leadership. The Office of Professional
Responsibility, the Office of the Inspector General, and the Professional Misconduct
Review Unit all operate under the Department’s control. Concentrating investigatory and
adjudicatory authority within the same institution whose attorneys are under scrutiny
creates an inherent conflict of interest and makes delay, minimization, or
non-enforcement of serious allegations a predictable outcome. An agency cannot lawfully
evade enforcement by designing a process that permits indefinite inaction—particularly
where, as here, the agency is regulating its own employees.
The Department’s reliance on so-called “rogue” bar complaints to justify this rule further
underscores its defects. The rule does not define “rogue,” leaving the term dangerously
broad and entirely subjective; and ignores the extensive process followed in such matters.
In practice, it would permit the Department to classify disfavored complaints as improper
simply because they arise from controversial cases, challenge litigation positions, or
involve high-profile matters—none of which renders a complaint unethical under state
professional conduct rules. This vagueness ris…
risks such as self-protective bias, resource constraints, or institutional reluctance to
pursue internal discipline. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983). In practice, the rule risks creating a de facto safe harbor in
which complaints against DOJ attorneys are never fully investigated or adjudicated, which
will erode public confidence in the integrity of federal law enforcement and other actions
by the Department.
Existing state bar disciplinary systems already include well-established mechanisms to
screen out frivolous or abusive complaints and to manage investigations responsibly. The
Department has not demonstrated that these systems are inadequate or that
extraordinary federal intervention is necessary. Instead, the proposed rule would displace
independent state judgment without articulating a reasoned basis for doing so or
considering obvious alternatives.
The proposed rule also raises serious due process concerns for complainants, state
disciplinary authorities, and the public. By conditioning state bar proceedings on an
undefined, open-ended Department “review,” the rule deprives interested parties of fair
notice, predictable procedures, and meaningful timelines. Neither the rule nor the Notice
of Proposed Rulemaking specifies objective standards governing when a complaint may
be deemed “rogue,” how long Department review may last, or what procedural protections
apply during that review.
This standardless discretion invites arbitrary decision-making and fails to provide the
minimal procedural safeguards. Where, as here, the Department’s decision to delay or
withhold review can foreclose or indefinitely postpone state disciplinary proceedings, due
process requires clear standards and enforceable limits. Their absence permits the
Department to function as both gatekeeper and interested party, heightening the risk of
biased or inconsistent outcomes and undermining confidence in the integrity of the
disciplinary …
For these reasons, the proposed rule must be withdrawn. We strongly believe that lawyer
disciplinary processes must preserve the primacy of state disciplinary authorities and
ensure that ultimate disciplinary authority remains with independent bodies. DOJ
leadership cannot be permitted to police itself.
No lawyer—and certainly no lawyer wielding the power of the federal government—
should be above the law.
Respectfully submitted,
Corrine Parver, Esq.
President, Women Lawyers On Guard Action Network, Inc.
Elaine Metlin, Esq.
Vice President of Advocacy, Women Lawyers On Guard Action Network, Inc.
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