The Trump administration last week proposed a rule that would shield Department of Justice lawyers from independent ethics investigations and bar discipline from the states and the District of Columbia. My legal ethics lawyer association’s listserv virtually melted down over it. Almost all of the association’s members are Trump Deranged, but in this case they had just cause to flip out.
The proposed rule would violate a federal law known as the McDade Amendment, which holds government lawyers are still subject to the ethics rules of the states in which they practice, “to the same extent and in the same manner” as every other lawyer licensed in the state. In addition to that, the proposed rule makes no sense: the state bars giveth licenses to practice law, and they obviously can taketh them away.
The Office of Professional Responsibility (OPR) came into being as a compromise measure long ago when politically motivated state bar ethics boards were applying different standards to government lawyers based on partisan interpretations of the ethics rules. OPR has never been as zealous in enforcing ethical standards as local bar associations, and the bars aren’t particularly zealous either. The D.C. bar has had several high-profile spats with OPR over the years, insisting, and rightly so, that it shouldn’t be required to ratify an OPR hall pass for unethical conduct.
I assume, and hope, that the clearly impractical rule change is DOA, and like so many other proposals and floated options from the Trump Administration, it is more of a negotiating ploy than a serious proposal. The truth is that virtually all of the bar associations are dominated by progressives and Democrats, and consider a lawyer being willing to work for the Trump Administration as strong evidence of inherently unethical character. It is also true, as I have discovered to my horror over the past year, that many of the bar associations are untrustworthy and corrupt. This was revealed to me in part when the D.C. bar, whose legal ethics CLE I had been prominently and successfully teaching for three decades, fired me after I tried to open a legal ethics can of worms—the bar’s unique non-lawyer partner option—that would reveal a gross and wriggling failure on the bar’s part to police its members, resulting in nation-wide fraud and harm to tort victims.
A New York Times op-ed about the unethical proposed rule deceptively (and risibly) asserts,
Ethics Alarms 
Lawyers who represented Donald Trump during and after the 2020 Presidential elections have been disbarred, e.g. Eastman. So is Donald Trump trying to prevent something similar from happening, by making sure that lawyers working at the DOJ will not be disbarred for purely political reasons?
Exactly. The Times writer says “good, honest” lawyers are quitting DOJ on principle. I think its out of fear of partisan reprisals.
We already have Democrats on record promising lawfare and prosecutions (e.g. Susan Rice in a recent interview). USA Politics has devolved into war between MAGA Trump supporters, and the Trump deranged. In war the winner decides what is ethical. That is even true for World War II according to Margaret Thatcher, who was unapologetic about meting out victor’s justice in Nuremberg (in which many Nazi’s were condemned using ex post facto laws). Trump’s main concern is not to fall victim to future victor’s justice by his political enemies. So we may be technically correct to call out the DOJ’s actions to prevent that scenario as “unethical”, however given the current political context and recent prosecution history (Laetitia James, Fani Willis, Jack Smith, J6, disbarments of Trump lawyers) Trump should use every tool available to his defense, and of those associated with Trump. Will and can the DOJ proposal work is therefore a more pressing question than whether it is ethical. Sometimes winning (or not losing) is the only think that matters.
I understand why by itself the rule is unethical but help me understand why a defensive strategy that is unethical as a defense against unethical partisan and discriminatory rule enforcement is unethical. It seems like this is an ethics zugswane. How do you fight against unethical practices by bar associations.