Disciplinary Grievances Against Trump Administration Lawyers

One of the themes of Bluesky comments about Trump Administration lawyers is “won’t these guys get in trouble for that?” or, more optimistically, “that’s going to get [Ed Martin, Emil Bove, Pam Bondi, etc.] disbarred.” At the risk of being the Debbie Downer of legal ethics, however, I want to explain why that’s not something anyone should be getting their hopes up for. I’ll use as an example the recent grievance against Acting Deputy Attorney General Emil Bove, filed by ten Democratic Senators. These are further fallout from the high-profile resignations of federal prosecutors in the SDNY who refused to file a motion to dismiss charges without prejudice against NYC Mayor Eric Adams, a topic I wrote about recently.

Let’s start with the oh-so-exciting topic of . . .

State Bar Authority to Discipline Federal Lawyers

A lawyer for the federal government, including a long list of high-ranking officials including the Attorney General, Deputy Attorney General, DOJ division heads, all United States Attorneys and AUSAs, is subject to regulation by state laws and rules governing attorney conduct, in any state in which the attorney provides legal services, to the same extent as any other lawyer. 28 U.S.C. § 530B. That means local versions of the Model Rules of Professional Conduct, as adopted by the highest court in a state (with a few oddball variations, like the joint orders of the four Appellate Divisions of the Supreme Court in New York, and the significant legislative regulation of lawyers in California). What lawyers often refer to as “the bar” derives its authority from state judiciaries. The nomenclature varies from state to state, but there is generally something like an office of disciplinary counsel, an apparatus of hearing and appeal boards, and ultimately judicial review in the state’s highest court. Sometimes these agencies operate by authority delegated to a state bar association (as in my jurisdiction of first admission, Washington State), while in other cases that are essentially judicial-branch administrative agencies (like the Illinois Attorney Registration and Disciplinary Commission) not connected with any bar association.

Thus, a federal government lawyer is “subject to discipline” (in MPRE lingo) in any jurisdiction in which the lawyer provides or offers to provide legal services. See Model Rule 8.5(a). Rule 8.5(a) also provides that the lawyer remains subject to discipline in the lawyer’s jurisdiction of admission. A lawyer in the Department of Justice who is admitted to practice in the District of Columbia, and who does something that constitutes the practice of law in New York (let’s say filing a motion to dismiss a prosecution), is therefore subject to discipline in D.C. and New York. There is the additional complication of federal courts having their own disciplinary authority, but on the substantive rules to be applied they generally incorporate the rules of the jurisdiction in which they sit. The local rules for the SDNY and EDNY, for example, state that it is a ground for discipline that:

In connection with activities in this court, any attorney is found to have engaged in conduct violative of the New York State Rules of Professional Conduct as adopted from time to time by the Appellate Divisions of the State of New York. In interpreting these Rules of Professional Conduct, in the absence of binding authority from the United States Supreme Court or the United States Court of Appeals for the Second Circuit, this court, in the interests of comity and predictability, will give due regard to decisions of the New York Court of Appeals and other New York state courts, absent significant federal interests.

Joint SDNY/EDNY Local Civil Rule 1.5(b)(5).

Section 530B, the so-called McDade Amendment, has an interesting history that’s worth a quick detour. It starts with a Second Circuit case called U.S. v. Hammad, 858 F.2d 834 (2d Cir. 1988), which upheld the district court’s suppression of recordings made at the direction of a federal prosecutor, who instructed a cooperating witness to talk to a co-conspirator known to be represented by counsel in the matter. The rule of professional conduct then in effect (New York Code of Professional Responsibility DR-7-104(A)(1); now New York Rule of Professional Conduct 4.2) prohibited the contact. The Second Circuit affirmed the authority of state rules of professional conduct over the conduct of lawyers employed by the federal government, also holding that the rule provided protection to represented targets of a criminal investigation over and above the protection of the Sixth Amendment.

The Justice Department had long taken the position that “rules promulgated by state courts or bar associations that are inconsistent with the requirements or exigencies of federal service may offend the Supremacy Clause of the Constitution.” 9 Op. O.L.C. 1 (1985). The DOJ reaffirmed that position in response to Hammad in a memo from Attorney General Richard Thornburgh. The memo stated that any attempt to apply state rules of professional conduct (“ethics rules,” if you really have to call them that) to federal prosecutors violates the Supremacy Clause of the U.S. Constitution:

In sum, it is the Department's position that contact with a represented individual in the course of authorized law enforcement activity does not violate DR 7-104. The Department will resist, on Supremacy Clause grounds, local attempts to curb legitimate federal law enforcement techniques.

Thornburgh Memo, reprinted as an Appendix to In re Doe, 801 F. Supp. 478 (D.N.M. 1992). The anti-contact rule was seen as an impediment to federal law enforcement efforts and therefore subordinate to federal law.

The Thornburgh Memorandum did not fare particularly well in the federal courts. The Ninth Circuit, for example, referred to “the district court’s trenchant analysis of the inefficacy of the Attorney General’s policy statement.” U.S. v. Lopez, 4 F.3d 1455 (9th Cir. 1993). Much of the district court’s analysis focused on the substantive issue of whether pre-indictment contact (i.e. not in violation of the Sixth Amendment) by undercover officers or confidential informants with the target of an investigation should be within the “authorized by law” exception to the anti-contact rule. (I’ve always thought that was the better reading of the rule, for what it’s worth.) Of longer-term significance, however, is the court’s conclusion that federal government lawyers must be held to the same standards as other lawyers. But the district court did not address the Supremacy Clause argument in the OLC opinion, and on appeal the government abandoned its reliance on the Thornburgh Memorandum. Thus, Lopez did not finally settle the question of exemption from state regulation of prosecutors or other attorneys employed by the federal government.

The issue arose again in the Clinton Administration, which had a similar view of the prerogatives of federal prosecutors. Attorney General Janet Reno used the DOJ’s rulemaking process to issue what became known as the Reno Rules, similarly exempting federal government attorneys from regulation by state courts. Among other things, the Reno Rules sought to redefine the coverage of the anti-contact rule where the adverse party was a corporation, narrowing its scope to “controlling persons.” In United States v. McDonnell Douglas Corp., 132 F.3d 1252 (8th Cir. 1998), the Eighth Circuit held that the Reno Rules were ultra vires, the Justice Department having no statutory authority to promulgate them. The issue of thwarting federal law enforcement, and thus the Supremacy Clause, did not come up in McDonnell Douglas, which was a civil qui tam case, so it theoretically remained unresolved.

The matter was finally settled in an amusing way after Representative Joseph McDade was indicted on bribery charges (he was subsequently acquitted). Along the way, Rep. McDade realized that the Justice Department continued to believe that federal prosecutors were exempt from state rules of professional conduct including, once again, the anti-contact rule. He introduced what became known as the McDade Amendment, now codified as 28 U.S.C. § 530B, which provides:

An attorney for the Government shall be subject to State laws and rules, and local Federal court rules, governing attorneys in each State where such attorney engages in that attorney’s duties, to the same extent and in the same manner as other attorneys in that State.

Voilà, no more Supremacy Clause issues, since federal law now expressly makes lawyers subject to state regulation.

So, then, do we have reason to believe that grievances against Trump Administration lawyers like Emil Bove will lead to their discipline, maybe even including disbarment? I think the answer is the one given by Wayne in the movie Wayne’s World: Yeah, and monkeys might fly out of my butt.

Why Not Rely on State Disciplinary Proceedings?

The usual reasons given for skepticism regarding the potency of state disciplinary proceedings against federal government lawyers have to do with resource constraints. For the most part, these offices are overworked and understaffed. Disciplinary counsel’s offices are usually swamped with complaints from clients about lack of communication, excessive fees, and poor quality work. More seriously, lawyers sometimes fail to safeguard advance payments from client in their trust accounts or engage in outright conversion of client funds. Disciplinary counsel have a great deal of discretion to allow a grievance to proceed or to dismiss it, and when faced with a politically hot-button matter likely to draw the full attention of the administration, they may decide that the better part of prudence is to dismiss the matter in favor of a different institution, such as the DOJ’s Office of Professional Responsibility – about which more below – or to regard it as a kind of political question that is not within the institution’s capacity to adjudicate.

That’s the usual reason, but I want to offer a second, and I think more serious reason to doubt the capacity of state grievance proceedings to deal with the abuses of power we’re witnessing in this administration. This would be a problem even if there existed a hypothetical mighty state disciplinary authority with the funding, personnel, and backbone to pursue one of these grievances against a lawyer like Emil Bove to the conclusion.

Much of the professional misconduct falls outside or in between the rules of professional conduct. It’s more in the nature of egregious violation of unwritten – and previously taken for granted – norms of independence and good faith. As a result, grievances are forced to try to shoehorn these violations into the rules of professional conduct, stretch the boundaries of the rules in a worrisome way, or rely on the open-ended catch-all provisions of Rule 8.4 notwithstanding the glaring vagueness and overbreadth problems created by that approach.

The facts pertaining to the grievances filed against Bove will be well known to anyone who has read this far in this newsletter; I’m taking them from the amicus brief of numerous federal judges filed in the district court proceeding, from Danielle Sassoon’s resignation letter, and from the filed grievances. Very briefly, NYC Mayor Eric Adams was indicted in 2021 for, among other things, accepting illegal campaign contributions. The government consistently opposed Adams’s motions to dismiss the charges, including on allegations that they were politically motivated. However, after Adams traveled to Mar-a-Lago to meet with Trump to explain how the prosecution was interfering with his ability to help the administration in its campaign to round up and deport undocumented immigrants, Acting DAG Bove directed career prosecutors in the SDNY to drop the charges, critically without prejudice, for two reasons: (1) to secure Adams’s assistance in enforcing federal immigration laws, and (2) because the prosecution had been politically motivated. Bove explicitly stated that he had not assessed the strength of the evidence or the legal theories on which the prosecution was based. Around the time that Sassoon and other lawyers resigned from the Justice Department rather than file the motion to dismiss, Adams met with Trump’s “border czar” Tom Homan, who publicly stated that “if [Adams] doesn’t come through, I’ll be back in New York City, and . . . I’ll be in his office, up his butt, saying ‘Where the hell is the agreement we came to?’”

The grievance filed by Democratic Senators on the Judiciary Committee relies exclusively on several of the catch-all provisions of New York Rule 8.4, which state that a lawyer shall not:

• attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another. Rule 8.4(a). The theory here is that Bove knowingly attempted to induce Sassoon and others into an unspecified violation of the rules of professional conduct, perhaps making a false statement of fact to a tribunal.

• engage in illegal conduct that adversely reflects on the lawyer’s honesty, trustworthiness or fitness as a lawyer. Rule 8.4(b). It’s not clear what the illegal conduct is here, and the Senators’ letter omits the word “illegal” from its reference.

• engage in conduct involving dishonesty, fraud, deceit or misrepresentation. Rule 8.4(c). If anything, Bove’s statements about the reasons for dismissing the charges were excessively honest, such as practically admitting that dropping the charges was a quid pro quo for Adams’s assistance in rounding up immigrants.

• engage in conduct that is prejudicial to the administration of justice. Rule 8.4(d).

• state or imply an ability to influence improperly or upon irrelevant grounds any tribunal, legislative body or public official . . .. Rule 8.4(e)(1). That’s a bit of a head-scratcher, in that Bove wasn’t implying that he could influence the tribunal, but asking DOJ lawyers to file a motion with the tribunal.

After listing these alleged rule violations, the Senate reference letter gets to the major point:

Mr. Bove’s conduct not only speaks to his fitness as a lawyer; his activities are part of a broader course of conduct by President Trump and his allies to undermine the traditional independence of Department of Justice’s investigations and prosecutions and the rule of law.

Yes, yes, yes – 100% agreed! But the rules don’t really address the traditional independence of the DOJ or the importance of the rule of law. And while one can certainly see how Bove’s conduct can be seen as prejudicial to the administration of justice, that rule is so broad and open-ended that there are serious institutional risks involved in using it to deal with conduct such as this. When I teach the law of lawyering, I emphasize that the drafters of the Model Rules intended the rules to be read like a statute, giving great importance to the specific language used to express the rules, as well as qualifications and exceptions on lawyers’ duties. If Bove had made a false statement of fact to the tribunal (Rule 3.3(a)(1)), a false statement of fact or law to a third person (Rule 4.1), had caused the institution or maintenance of a criminal charge knowing that it lacked probable cause (Rule 3.8(a)), used means that have no substantial purpose other than the embarrass or harm a third person (Rule 4.4), or anything else that fits within the text of a rule, then a disciplinary authority would be able to investigate the conduct and determine whether it is a rule violation. But the broad standard of prejudicial to the administration of justice invites relitigation of the underlying issues and endless rounds of charges and countercharges of “lawfare” or “weaponizing” the disciplinary process.

Think about it this way: Suppose a state disciplinary authority refused to dismiss a similar grievance, based only on the catch-all rules, against Jack Smith for conduct prejudicial to the administration of justice. Why? you say – well, consider the grievances that led Trump to retaliate against lawyers at Covington & Burling who were representing Smith, i.e. that his prosecution was politically motivated and therefore prejudicial to the administration of justice. But that’s bullshit. Yes, I know, but without tying professional discipline rigorously to the language of rules, and cases interpreting them, the catch-all rules are subject to the problem of weaponization. I’m not naïve; I don’t think that our side refraining from filing disciplinary grievances would prevent their side from doing the same thing. Speaking as a scholar of this area of law, however, I don’t think this is a good use of the rules of professional conduct or the state disciplinary apparatus, no matter how much we’d like to see Emil Bove sweat out a bar grievance.

What About the DOJ’s Office of Professional Responsibility?

The DOJ’s Office of Professional Responsibility was established by order of Ford Administration Attorney General Edward Levi, in response to the abuses of power committed by DOJ lawyers in connection with the Watergate break-in and cover-up in the Nixon Administration. (For a good history, see this article on the National Organization of Criminal Defense Lawyers website.) The OPR gained some public attention during the George W. Bush Administration, when it investigated the conduct of DOJ lawyers, including John Yoo, who had approved the warrantless wiretapping program run by the National Security Agency. (I mentioned John Yoo’s legal advice in an earlier post, and referenced Marty Lederman’s excellent analysis of “chalk on the spikes” legal advice.) As a result of this high-profile controversy, the OPR’s Analytical Framework received some attention. The Framework states:

A Department attorney engages in professional misconduct when he or she intentionally violates or acts in reckless disregard of an obligation or standard imposed by law, applicable rule of professional conduct, or Department regulation or policy.

It then explains that applicable law includes constitutional and statutory standards of conduct as well as state rules of professional conduct and DOJ policies contained in documents such as the United States Attorney’s Manual.

A separate complaint against Bove, by a self-described watchdog organization called the Campaign for Accountability, was sent in the form of a letter to the OPR. It sets out a good factual overview of Bove’s interference with the Adams prosecution, including the exchange of letters between Bove and Sassoon, the hearing before Judge Dale Ho on the government’s motion to dismiss, and the appointment of Paul Clement as amicus curiae to advise the court. (Clement subsequently recommended that the charges be dismissed with prejudice to avoid any appearance of a quid pro quo.) The letter then specifies the professional misconduct allegedly engaged in by Bove, and the rules he allegedly violated. In addition to the catch-all provisions of Rule 8.4, the complaint to the OPR adds N.Y. Rule 3.4(e), which states that “[a] lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter.” Ehh, what civil matter? As the grievance states, the alleged quid pro quo is for Adams’s assistance “in fulfilling the immigration enforcement goals of the Trump Administration.” It goes on to say that Bove intends to hang the threat of prosecution over Adams like the Sword of Damocles. Yes, I think that’s exactly what he intended, but that doesn’t make the negotiations with Adams a “civil matter” for the purpose of Rule 3.4(e), which is generally understood as codifying the criminal law of extortion. In informal language Bove may be seen as “extorting” Adams, but it is a long way from the statutory definition of extortion.

In any event, the OPR investigates reports of professional misconduct and prepares a report for “responsible management officials” to consider. Ultimately the OPR is under the authority of the Attorney General. What do you think, is Pam Bondi likely to approve a finding of the OPR that Emil Bove committed professional misconduct in putting the screws to Eric Adams?

A Musical Epilogue

Not long ago I was listening to music while cooking dinner when my wife walked in and said “man, that’s a depressing song!” The song is by an ad hoc band of Brooklyn songwriters calling themselves Fantastic Cat, and it’s called “Nobody’s Coming to Get You.” It’s about that terrifying moment when you transition from being a kid to being an adult and realize that you’re on your own, and no one is going to step in and make things okay. I nominate it as the official song of the Trump 2.0 years. Here’s the first verse, the pre-chorus, and the chorus:

When you were young and your mom was in charge
And you saw the whole world from the back of the car
It was easy to see how someday you could be something big
But now you're grown and you make all the rules
You can stand on your head, you can sleep in the pool
And you don't have to clean and you don't have to say that you did

You get lonely sometimes when the stars don't shine
And you get a little drunk some nights, wishing you were a kid again
Wanting someone to hold your hand

Nobody's coming to get you baby
Nobody's coming to get you
Nobody's going to make this easy
Nobody's going to set you up with a house on the hill
With a bottle of pills
And a nice set of china to eat all your meals
Well it's sad, but it's true
Nobody's coming to get you

It's a great song (the drum fill back in from the breakdown at 3:03 in the video kicks ass), although I suppose it’s also a bit of a downer. In any event, it has been playing in my head non-stop when I think about Trump 2.0. The last time around it felt like there was always an expectation and a hope that the grown-ups were in charge. The first cabinet included establishment figures like Rex Tillerson at State and Jim Mattis at Defense, and even if Bill Barr was pretty far to the political right, he at least had decades of experience in Washington. There was a sense that the business community wouldn’t let things get completely out of hand – remember all the members of Trump’s business advisory councils reigning after he said there were “many good people” at the white supremacist protest in Charlottesville? And if all of that failed, the courts would put a stop to the worst excesses.

Now . . . I’m not so sure. I have some thoughts about what can be done when nobody’s coming to get you, which I expect I’ll write about in the future, but for now I’ll end with the sobering thought that mom and dad aren’t going to fix things this time and a different strategy is required to respond to the abuses of official power this time around.