The Dangerous DOJ Overreach

The Department of Justice (DOJ) recently announced a proposed rule that would allow the Attorney General to step in and pause the investigations and or disciplinary hearings of a State Bar Association, replacing it with their own internal investigation. They claim the rule is needed in part to stop the “weaponization”” of bar complaints against their lawyers.

This is a terrible idea, both legally and practically. Legally this rule would arguably violate federal law as well as the 10th Amendment since regulation of attorneys has always been viewed as a state power, not a federal one. The Supreme Court has also stated on several occasions that it is a state power. While it is true that the federal law in question does give the Attorney General some powers, it cannot be read as giving the AG the ability to usurp state powers.

However, practically is where this law causes even more damage. States have an undeniable interest in ensuring that the attorneys they license are living up to the state’s moral and ethical rules for practice, even if that attorney only operates at the federal level. This proposed rule would take away that power, replacing it with a system that gives the appearance if not the practice of having a fox guard the hen house.

And that ‘fox guarding the hen house’ appearance is a problem because it undermines trust in the legal profession and allows people to question the ethics of the legal profession. Such a degradation could impact the stigma that too many legal professionals deal with and which harms their mental health.

Allowing state bars to be the ones handling these cases also allows them to more readily identify when a case might involve mental health issues, at which point they can more easily refer them to the state’s Lawyer Assistance Program (LAP) or another support program like the one we offer here at The LegalMind Society.

As for the claim that more people are weaponizing bar complaints. Even if this is true, state bars are generally good at identifying meritless claims and dismissing them with little to no interruption of the legal professional in question. Remember, bar associations want to protect their profession and that includes protecting them from bogus complaints whenever possible.

All in all, this seems like a bad idea from the DOJ, a dangerous overreach for the agency and one that could harm the profession as a whole.