State Bar Disciplinary Rules as Applied to Federal Government Attorneys ( 1985 )

State Bar Disciplinary Rules
As Applied to Federal Government Attorneys
The purported imposition o f exclusive disciplinary jurisdiction by state courts upon federal
lawyers acting in the scope o f their federal authority is subject to the overriding requirements
o f the Supremacy Clause. Rules promulgated by state courts or bar associations that are
inconsistent with the requirements or exigencies of federal service may violate the Supremacy
Clause.
Although Department of Justice authorization statutes have im plicitly recognized that federal
attorneys may be subject to reasonable conditions of state bar membership and to state ethical
rules of general application, the imposition of state rules o f conduct which penalize or
interfere with the performance of authorized federal responsibilities is not recognized or
approved by such statutes.
To the extent that a proposed state bar rule asserting “exclusive” disciplinary jurisdiction implies
an exclusive right to judge the conduct o f federal attorneys by state ethical standards, to
impose state sanctions, or to displace any federal forum, it would raise serious issues under
the Supremacy Clause.
August 2, 1985
M em o ran d um O p in io n f o r t h e D ir e c t o r ,
E x e c u t iv e O f f ic e fo r U n it e d S t a t e s A t t o r n e y s
This responds to your request that we review the proposed amendments to
the Code of Professional Responsibility and Rules of Disciplinary Enforce­
ment of the Alabama State Bar.
Paragraph 4 o f the proposed amendments states:
Any attorney admitted to practice law in this state, including
District Attorneys, Assistant District Attorneys, United States
Attorneys, Assistant United States Attorneys, the Attorney Gen­
eral, Assistant Attorneys General, and any attorney specially
admitted by any court in this state for a particular proceeding is
subject to the exclusive disciplinary jurisdiction o f the Supreme
Court of Alabama and the Disciplinary Board o f the Alabama
State Bar, hereafter established.
You have indicated that the language of paragraph 4 of the proposed amend­
ments is ambiguous in its application to Assistant Attorneys General within the
Department. For purposes o f this discussion, we have assumed that the pro­
posed amendment is intended to apply to those individuals, as well as to the
Attorney General of the United States.
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The imposition o f exclusive disciplinary jurisdiction by a state court upon
federal lawyers acting in the scope of their federal authority must be assessed in
light of the Supremacy Clause.1 In a prior memorandum entitled “Disqualifica­
tion o f Prosecutor Because of Form er Representation,” 9 Op. O.L.C. 1 (1985),
we advised you that the Department of Justice has regularly maintained that
rules prom ulgated by state courts or bar associations that are inconsistent with
the requirements or exigencies o f federal service may offend the Supremacy
Clause o f the Constitution. See Sperry v. Florida, 373 U.S. 379 (1963) (where
Congress and the Executive had authorized nonlawyers to practice before the
United States Patent Office, the State of Florida could not prohibit such
conduct as the unauthorized practice of law). In this regard, this Office has
concluded that a Department attorney, acting under Departmental authority in
an undercover operation, cannot be guilty of violating state ethical rules “if his
acts are authorized by federal law, including the Department’s regulations
prescribing ethical standards,” ju st as a federal employee, under appropriate
circum stances, may perform authorized federal functions without regard to the
limits o f state criminal law. See Memorandum for Thomas P. Sullivan, United
States Attorney for the Northern District o f Illinois from Mary C. Lawton,
Deputy Assistant Attorney General, Office o f Legal Counsel 14 (Aug. 1, 1978)
(citing In re N eagle, 135 U.S. 1, 75 (1890)).
The activities o f the federal government are presumptively free from state
regulation, unless Congress has clearly authorized state regulation in a specific
area. See H ancock v. Train, 426 U.S. 167, 178-79 (1976). State laws or court
rules regulating the conduct of employees o f the United States in the perfor­
mance o f their official duties constitute regulation of the activities of the
federal government itself and are therefore also presumptively invalid under
this rule. In the area of professional conduct, however, Congress has directed
that Justice Department attorneys must be licensed and authorized to practice
under the laws o f a state, territory, or the District of Columbia.2
In prior interpretations of that requirement, the Department has been willing
to assume that Congress “intended that the attorneys would be subject to
reasonable conditions o f continued bar membership where those conditions are
not inconsistent with the requirements or exigencies o f federal employment,”
and that Congress could reasonably have intended federal employees to be
subject to “reasonable and established ethical rules for the bar generally.”
M emorandum o f the Department o f Justice, “In the M atter of the Petition of the
Board o f Governors o f the District of Columbia Bar” 5 (Sept. 11,1979). On the
1U .S. C onst, art. VI, cl. 2 provides: “This C onstitution, and Law s o f the U nited States which shall be made
in P ursuance th e r e o f . . . shall be the supreme Law o f the Land; and the Judges in every State shall be bound
thereby, an y T hing in the C onstitution or L a w s o f any State to the Contrary notw ithstanding.”
2 D epartm ent o f Justice authorization and appropriations statutes routinely provide that the D epartm ent's
fund s m ay not be used to pay the com pensation o f any person employed as an attorney unless that person is
du ly licensed and authorized to practice as a n attorney under the laws o f a state, territory, or the D istrict of
C olum bia. See, e.g .. Pub. L. No. 96-132, § 3 (a), 93 Stat. 1040, 1044 (1979); Pub. L. No. 95-324, § 3(a), 92
Stat. 3459, 3462 (1978); Pub. L. No. 95 -8 6 , § 202, 91 Stat. 419, 428 (1977); see also Pub L. No. 9 8 ^ 1 1 ,
§ 203(a), 98 Stat. 1545, 15 5 8 -5 9 (1984) (continuing the requirem ent o f § 3(a) of Pub. L. No. 96-132).
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other hand, we do not believe that Congress’ mandate to state and local bar
associations extends to the imposition of rules of conduct that penalize or
otherwise interfere with the performance of authorized federal responsibilities.
Nor do we believe that Congress could have intended to allow the fifty states,
the territories, or the District of Columbia to develop special rules for Federal
attorneys. See, e.g., id. at 5-6; Memorandum o f the Department o f Justice, Re:
“Report of the New Jersey Supreme Court Committee on the Model Rules of
Professional Conduct” (Nov. 8,1983). Thus, pursuant to the Supremacy Clause,
the Department has opposed attempts by state bars to impose special obliga­
tions or disabilities on federal attorneys.
The Department has consistently reserved the prerogative to determine the
appropriate course of conduct for federal attorneys faced with a conflict be­
tween their official duties and state regulation. The decision to authorize a
Department attorney to take action inconsistent with a relevant state bar stan­
dard, which may subject that attorney to state disciplinary proceedings, will be
made only after careful consideration of the surrounding circumstances. The
Department’s standard of conduct is not automatically given preference over
any state bar standard without regard to the relative importance o f the conflict­
ing standards. Rather, we generally reserve reliance on the Supremacy Clause
for those occasions when a state bar standard impedes the authorized functions
of the Attorney General and the Department o f Justice, so that the Department
cannot adequately carry out its functions if it adheres to the state standard.
Thus, in view of the above discussion, whether or not the Alabama rule
offends the Supremacy Clause could depend on the facts of particular cases
involving federal lawyers and whether state or federal standards are applied in
the state disciplinary proceeding. We are not certain, however, what is meant
by “exclusive” disciplinary jurisdiction. To the extent that state jurisdiction
may be asserted in a manner that does not impede the functions o f the Depart­
ment, we cannot say that this proposed amendment absolutely violates the
Constitution. Yet, if the assertion o f “exclusive” disciplinary jurisdiction is
intended to imply an exclusive legal right to judge the conduct of federal
attorneys by state ethical standards, to impose appropriate state sanctions, and
to displace any federal forum, the proposed amendment raises a serious issue
under the Supremacy Clause.
Ra lph W . T arr
Acting Assistant Attorney General
Office o f Legal Counsel
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