🥊 The underappreciated counterattack shaking DOJ leadership.
State bar licenses are a privilege, not a right.
You may notice we’re under a new banner. Moving forward, the artist formerly known as Counter Punch will be Upper Cut. New name, same determination to step into the ring swinging. Thanks for following along!
This week, we’ve got ideas for holding rogue DOJ lawyers accountable…
Keep filing those bar complaints!
Failure to participate in a state bar investigation = presumptive suspension.
Judges need protection, too.
But first, let’s talk about the state-level accountability efforts that have the Department of Justice rattled.
The DOJ is coming after state bar associations: On March 5, the DOJ proposed a rule attempting to limit states’ ability to investigate or discipline DOJ attorneys for violations of state legal ethics rules. The rule aims to allow the DOJ to “request” states suspend related investigations or disciplinary proceedings. And if states don’t comply with the DOJ’s “request”? The rule proposes to empower the DOJ to take “appropriate action.”
If that raises alarm bells for you, good. Not only is this a direct challenge to states’ long-standing authority to regulate the legal profession, it also likely violates federal law under the McDade Amendment, which subjects federal attorneys to the same ethics rules that apply to any other attorney.
So, why is AG Bondi doing this now? In short, because outside pressure is working. Groups like the Legal Accountability Center and the Campaign for Accountability have led an effort to hold senior DOJ officials accountable for ethical misconduct by filing formal complaints with state bars. These bar complaints — and the investigations and disciplinary proceedings that follow — carry real professional consequences. And now, many current and former senior DOJ attorneys are staring down that reality, including:
AG Pam Bondi (for allegedly compelling staff to violate their ethical obligations);
Deputy AG Todd Blanche (for, among other things, allegedly assisting and/or counseling the Trump administration in instances of illegal conduct); and
Others such as former senior DOJ official and current Third Circuit Judge Emil Bove, former Acting U.S Attorney for the District of New Jersey Alina Habba and former Interim U.S. Attorney for the Eastern District of Virginia Lindsey Halligan.
At the same time, judges are furious with other DOJ attorneys — and their clients — for violating countless court orders, which also amount to clear ethical violations.
In Minnesota, for example, the chief federal judge identified 96 violations of court orders by ICE across 74 cases. After the DOJ complained that the finding “was far beyond the pale of accuracy,” the judge published a supplemental order revising the earlier finding to a whopping 97 violations across 66 cases — before providing 113 additional examples of cases in which ICE had violated court orders.
Rather than rein in her department (and herself), AG Bondi aims to limit accountability.
Here’s how to stop her:
Step 1: Blue-state officials — who have an institutional interest in regulating the lawyers who operate in their states — can file a formal comment on the DOJ’s proposed rule at regulations.gov by April 6th to preserve the right to a legal challenge. Courts will look to the administrative record when evaluating a challenge to the rule. Therefore, it’s critical to get key legal arguments on the record, including:
The rule is contrary to law under the McDade Amendment.
The rule infringes on the First Amendment right to petition the government by restricting the ability to seek redress of a grievance.
The rule violates the Tenth Amendment by infringing on states’ authority to regulate legal ethics.
Step 2: After filing a complaint, blue-state officials can prepare to sue. The courts have struck down plenty of agency actions by the Trump Administration before. They can knock down this one, too. We have the arguments — above — to make the case. Reach out — we’re always glad to discuss more.
Step 3: Continue filing those bar complaints — and keep up the pressure. Attorneys and advocates should continue to hold rogue DOJ lawyers to account. The defiance of a court order or other unethical conduct comes with serious professional consequences for the lawyers involved. The American Bar Association makes that explicit. Knowingly assisting a client in their unlawful conduct? There’s a rule against that too. These rules are in place across the country. State bar authorities should enforce them — as they always have. There’s no reason to let up now.
This proposed rule is a sign the DOJ is on its back foot. Time to double down.
As always, we’ve got some ideas for how.
THE PUNCH LIST
Are you a dues-paying attorney? Push your bar association to fight back. As things currently stand, attorneys can, for the most part, continue practicing law even while they are under investigation. State bars can change that and prevent DOJ attorneys from hiding from state-level accountability. How? Issue new rules that threaten immediate suspension (pending the outcome of the investigation) for attorneys who fail to cooperate with an investigation.
Are you a state legislator? Stand up for the judges upholding the rule of law. In recent years, threats against, and harassment of, judges have skyrocketed — particularly in cases where those judges ruled against the Trump administration. In Massachusetts alone, for example, judicial employees have been threatened at least 359 times in the last four years. States have started to respond. Maryland and Delaware, for example, have enacted laws allowing judges to request that their personal information, like home addresses, not be published. But most states still lack any such protections. Where they don’t yet exist, legislators can get to work.
Do you work for a law firm? Disrupt the government-to-private-practice pipeline for unethical attorneys. There’s a well-worn and lucrative path from a stint as an attorney in the federal government to a position at a private sector law firm. For current and former DOJ lawyers who violate court orders, that pathway should be closed off. Today, law firms can adopt, and loudly announce, new policies that prohibit the hiring of attorneys who have violated court orders or engaged in other ethical misconduct. With the legal system under attack, this is a moment for law firms to make clear where the legal profession stands. This should be an easy line to draw.
THE LEGAL ACCOUNTABILITY CENTER WON’T LET THIS SLIDE.
Michael Teter, the Executive Director of the Legal Accountability Center and Managing Director of The 65 Project, has led the charge against rogue Trump lawyers, filing bar complaints to document their misconduct and call for accountability. We gave him a ring:
“The DOJ’s proposed rule demonstrates the power of these bar complaints and the concern AG Bondi has that she and her staff will be held to account for their unethical conduct. The Legal Accountability Center will continue — and redouble — our efforts, and we call upon state bar disciplinary offices to be strong in the face of attacks on the rule of law.”
FIGHTING FIRE WITH FIRE
🥊 The Legal Accountability Center keeps up the pressure. In its latest bar complaint, LAC called for the Maryland Bar to hold Associate Deputy AG Aakash Singh to account for, among other things, encouraging federal prosecutors to defy court orders.
🥊 No, the D.C. Bar won’t back down. On March 6, the D.C. Bar initiated disciplinary proceedings against senior DOJ official Ed Martin. The allegations: Martin sought to punish Georgetown Law School over its DEI practices. When an ethics complaint sought to hold him to account, Martin sought an unauthorized ex parte meeting with a judge. Now, Martin’s in even bigger trouble.
🥊 And speaking of the D.C. bar… Last year, when Trump came after big law firms, the D.C. Bar stood up — putting lawyers and law firms (and lawyers working for the government) on notice that their sleazy deals with the Trump Administration could cross ethical lines.
🥊 Judge Boasberg puts DOJ in its place. In quashing subpoenas against Federal Reserve Chair Jerome Powell, the federal judge did not mince words citing “a mountain of evidence suggest[ing] the dominant purpose [of the subpoenas] is to harass Powell” to further the President’s agenda.
Upper Cut is a collaboration between Salt River Valley Project and Evergreen Legal — two organizations that believe punching back is the policy playbook this moment demands. It’s how we fight a rigged system, make courage contagious, and deliver for people against the leaders holding them down.