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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowThe Indiana State Bar Association released a public statement on Monday opposing a proposed rule by the United States Department of Justice that would allow the department to investigate complaints against its own attorneys before investigations are handled by individual state bars.
The proposed rule, Review of State Bar Complaints and Allegations Against Department of Justice Attorneys, would allow the justice department to request that the state bar disciplinary authority suspend any parallel investigations into DOJ attorneys while the department completes its own review. Specifically, the attorney general would have the right to review any ethics complaints or allegations against a department attorney “in the first instance.”
The proposal was open to public comment from March 5 to April 6.
John Maley, president of the Indiana State Bar Association, told The Indiana Lawyer that the organization chose to share their comment publicly to advocate as a voice for the legal profession.
“As Indiana’s largest legal organization, part of our mission is to improve the administration of justice on behalf of our 10,000+ members,” Maley said. “We serve and advocate on behalf of our members, their clients, and the public interest as an independent voice of the legal profession. In this instance, we determined that commenting in opposition to the proposed DOJ rule was critical, and we believed it was necessary to ensure our position was clearly heard.”
If approved, the rule would amend part 77 of title 28 of the Code of Federal Regulations, which provides guidance to DOJ attorneys regarding what’s required of them under 28 U.S.C. 530B.
28 U.S.C. 530B states that government attorneys are subject to the same state laws and local federal court rules that state attorneys are subject to.
According to the department, the change is needed to both prioritize attorney discipline and address the “unprecedented weaponization of the State bar complaint process.” The DOJ states that political activists have weaponized the bar complaint and investigation process over the past several years and that some state bar disciplinary authorities have given credence to the complaints.
Allowing activists to weaponize the process interferes with the broad statute authority of the attorney general to supervise department attorneys, the department said.
When 28 CFR 77 was passed in 1999, the DOJ determined that it did not interfere with the attorney general’s authority and, at the time, the complaints were relatively rare. Now, however, the targeted complaints intrude on the attorney general’s statutory responsibility over department attorneys.
The DOJ said that 28 U.S.C. 530B allows the attorney general to establish a new enforcement operation to ensure department attorneys comply with state ethics rules.
Maley and the ISBA oppose the proposed rule for three reasons, according to the public comment.
First, the organization believes in the separation of powers and federalism, which the ISBA said would be violated if the rule passes. “Attorney regulation and discipline are the exclusive province of each jurisdiction’s highest court,” Maley wrote. In Indiana, that authority lies with the Indiana Supreme Court alongside the Indiana Board of Law Examiners and the Indiana Disciplinary Commission.
Second, the organization believes the rule would undermine public confidence in and the perceived fairness of the attorney disciplinary system. All attorneys who appear in Indiana’s state and federal courts are subject to the same Indiana Rules of Professional Conduct and are not above the law, Maley said.
Finally, the ISBA said that while the DOJ has the power to place additional rules on its own personnel, no employer of attorneys in Indiana can impede the state supreme court’s regulation of Indiana attorneys.
Several public comments appear to oppose the proposed rule, including one from the Conference of Chief Justices, which emphasized that attorney regulation and discipline lie exclusively with each jurisdiction’s highest court. The conference urges the DOJ to consider separation of powers concerns before adopting a rule that would attempt to “interfere with timely jurisdictional attorney disciplinary proceedings.”
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