U.S. Attorney General Pam Bondi is proposing a rule to allow her to temporarily suspend ethics investigations by state attorney-licensing authorities, such as the Florida Bar, into current or former Justice Department attorneys.
The proposal was published in the Federal Register on March 5 in the wake of media reports that the Florida Bar was poised to investigate Lindsey Halligan, a former U.S. attorney in the Eastern District of Virginia and Florida Bar member.
Halligan had obtained indictments against two critics of President Trump – former FBI Director James Comey and Letitia James, New York’s attorney general – but a federal judge dismissed both cases and deemed Halligan’s appointment as U.S. attorney unlawful.
The Florida Bar indicated in a Feb. 4 letter to the Washington, D.C.-based Campaign for Accountability that there was a “pending investigation” of Halligan. But later, a bar spokeswoman said the statement was erroneous. The Campaign for Accountability filed a complaint against Halligan with the Florida Bar.
Both the Florida Bar and the American Bar Association (ABA) declined to comment about Bondi’s proposed new rule on the process for reviewing state bar complaints. But the Florida Record learned that the ABA plans to submit comments on the rule prior to an April 6 deadline.
The rule would bar former or current DOJ attorneys from taking part in state bar investigations prior to the attorney general’s review of such allegations, setting up indefinite delays. The Justice Department proposed the rule in response to an executive order from Trump calling on the department to examine how attorney discipline procedures at the state level have fostered “government weaponization.”
“This unprecedented weaponization of the state bar complaint process risks chilling the zealous advocacy by department attorneys on behalf of the United States, its agencies and its officers,” the DOJ said in its Federal Register overview of the rule. “That chilling effect, in turn, would interfere with the broad statutory authority of the attorney general to manage and supervise department attorneys.”
Robert Jarvis, a law professor at Nova Southeastern University, questioned the need for changing well-established procedures.
“Pam Bondi is proposing this rule to protect her employees,” Jarvis told the Record in an email. “Of course, she (and they) wouldn’t need this rule if she was not asking them, or if they were refusing her orders, to bring baseless lawsuits and grand jury investigations.”
He stressed that state oversight of attorneys, including attorneys working for the government, has been an accepted policy for more than two decades.
“One therefore need only ask why there is a sudden need for a process change,” Jarvis said. “The answer is obvious: Never before have we had such a lawless DOJ.”
Some attorneys have pressed the Florida Bar to investigate Bondi’s ethical conduct. Last year, the bar rejected such a bid by Florida attorney Jon May, concluding that federal constitutional officers were exempt from investigations for ethics violations while in office. The Florida Supreme Court backed up that decision.
Earlier this month, the Campaign for Accountability’s executive director, Michelle Kuppersmith, expressed confusion about the Florida Bar’s statement that no investigation is pending into Halligan’s actions.
“If there is no longer an investigation into Halligan, the question is why not, given that three judges indicated she engaged in conduct that appears to violate ethics rules,” Kuppersmith said.
