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McCuskey supports rule requiring federal review of DOJ attorneys

CHARLESTON – West Virginia Attorney General J.B. McCuskey expressed support Tuesday for an effort for the U.S. Department of Justice to investigate federal attorneys before any state-level bar association ethics investigation takes place.

In a press release Tuesday, McCuskey said he was leading a 14-state coalition supporting a U.S. Department of Justice proposed rule to create a federal review process to review bar complaints filed against DOJ attorneys and U.S. attorneys across the country.

“DOJ attorneys must be able to continue to enforce our nation’s laws without fear of politically motivated bar complaints or ethics investigations being filed against them,” McCuskey said. “We have seen an increase in these unfounded complaints.”

The proposed rule would give increased authority to the DOJ’s Office of Professional Responsibility (OPR) to have first review of any complaints filed against federal attorneys before any complaint filed with a state bar association could be adjudicated. Once the OPR review is completed, a report would be made available, and a bar complaint could then move forward.

According to the Brennan Center for Justice, the proposed DOJ rule is opposed by several state bar associations, including Illinois and New York, arguing that the rule is meant to shield DOJ attorneys from ethics investigations. The Brennan Center has also submitted comments opposing the proposed rule, which was released in March.

“Should the Justice Department be able to shield its misconduct from any meaningful oversight, it will allow the administration to abuse the DOJ’s immense power with impunity and further erode public trust in the justice system,” according to a March 6 Brennan Center report.

A resolution is expected to be brought during the West Virginia State Bar’s annual meeting in Charleston April 19-20 to address concerns about federal overreach and threats made against federal judges by executive branch officials, including President Donald Trump.

Among other things, the proposed resolution would require lawyers in the state to “defend the primacy of enforcement by the State Bar’s Lawyer Disciplinary Board, with the assistance of the Office of Disciplinary Counsel, of compliance with the Rules of Professional Conduct to all who are subject to disciplinary action … and that no individual or organization has the authority to suppress or forestall an investigation by the Board.”

According to the letter McCuskey wrote to acting U.S. Attorney General Todd Blanche Monday on behalf of the 14-state coalition, he said that states are seeing an increase in frivolous ethics complaints filed against federal attorneys, thwarting efforts of enforcing federal law.

“We’re deeply concerned about how politically motivated people or groups might try to influence the DOJ’s advocacy by threatening bar complaints,” McCuskey wrote. “Although DOJ attorneys have never been immune from this brand of lawfare, they have recently been targeted more often. Yet DOJ attorneys must be able to continue to enforce our nation’s laws without fear of ideologically driven bar complaints or ethics investigations.”

According to data cited by McCuskey, more than 90 bar complaints have been filed by two advocacy groups, the Legal Accountability Center and the 65 Project. McCuskey said that state bar associations and other state-level legal ethics watchdogs are ill-equipped to handle the increase in complaints.

“We recognize that most state bar processes operate with integrity and serve a vital public function,” McCuskey wrote. “Our concern is not with the system as a whole, but with whether that system is well-suited to evaluate the unique demands of federal practice — and whether its openness to outside complainants creates risks that a more structured federal process would reduce.”

“The Proposed Rule would help stop those instances of lawfare that threatens to stifle the federal government’s ability to zealously advocate for itself. We welcome it,” McCuskey continued.

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