Article About Our Current DOJ, The Rule of Law and Attorney Ethics
This is the latest article a colleague and I wrote for the legal publication, Law 360 and which was published by them yesterday and today. Posted here with their permission.
State Bars Must Probe Misconduct Claims, Even If It's The AG
By James Kobak and Albert Feuer (July 10, 2025)
James Kobak
Albert Feuer
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This June, more than 70 former judges, ethics experts and prominent attorneys — including two former chief justices of the Florida Supreme Court, and former federal judges and judges from other states — asked the Florida disciplinary bar authorities
to investigate three alleged examples of misconduct by Attorney General Pam Bondi beginning in February.
Each of these allegations directly implicates the role and ethical duties of government attorneys under the founding principles of our nation.
To protect the rule of law, it is imperative that serious allegations such as these be acted upon as soon as possible by those responsible for disciplining lawyers and our courts. Yet, only one day after the disciplinary request was filed, the Florida Bar refused.
Alleged Misconduct
In each example, Bondi and her high-ranking deputies allegedly suspended or terminated experienced attorneys — or in some cases, essentially forced them to resign — for refusing to make untruthful statements or assert positions that those attorneys knew were unfounded and contrary to law. These allegations were supported by citations to public sources, including well-respected news institutions, and to the administration's own words.
After the Florida Bar's decision refusing to investigate Bondi, the allegations were further supported by a June 24 whistleblower complaint filed by one of the terminated attorneys mentioned in the request, Erez Reuveni.[1]
According to the well-supported allegations in the disciplinary request, the attorney general's directions were incompatible with the subordinate attorneys' professional duties to act with candor, honesty, and good faith with courts and others, as well as to support the sound administration of justice, the U.S. Constitution and the laws of the U.S.
The allegations involve conduct stemming from Bondi's Feb. 5 zealous advocacy memorandum, which stated that U.S. Department of Justice attorneys are responsible for "not only aggressively enforcing criminal and civil laws enacted by Congress, but also vigorously defending presidential policies and actions against legal challenges on behalf of the United States."[2]
This memorandum misstated the role of DOJ attorneys, commanding them to act as zealous advocates for the president's policies, rather than as advocates for the interests of the government, as set forth in our Constitution and statutes.[3]
And, as the disciplinary request points out, "the Rules of Professional Conduct limit the 'zeal’ of attorneys to 'lawful and ethical measures.'"
State Bar Role
As to the Florida Bar's responsibility to investigate allegations of misconduct against public officials, the disciplinary request states:
The Rules not only require that lawyers who are public officials are accountable for their ethical conduct, but they specifically declare that lawyers who are public officials have a higher duty than other lawyers to maintain ethical standards. ...
Nowhere in the Rules or Comments is there an exemption for lawyers who are federal public officials.
The disciplinary request likewise noted that it is consistent with the role of the states in the regulation of U.S. attorneys, as described by the U.S. Supreme Court in its 1979 decision in Leis v. Flynt:
Since the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions. The States prescribe the qualifications for admission to practice and the standards of professional conduct. They also are responsible for the discipline of lawyers.[4]
The disciplinary request further observed that, under the McDade Amendment, a federal attorney "is bound by State laws, ethical rules and federal court rules in the 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.'" And, under the DOJ regulations cited in the request, Bondi is subject to the Florida rules.
Florida Bar Response
The Florida Bar nevertheless rejected the disciplinary request the day after receiving it without mentioning the Supreme Court, the McDade Amendment or DOJ regulations. Instead, it stated:
The Florida Bar does not investigate or prosecute sitting officers appointed under the U.S. Constitution while they are in office. Such proceedings by The Florida Bar, as an arm of the Florida Supreme Court, could encroach on the authority of the federal government concerning these officials and the exercise of their duties.
As discussed in the previous section, such review is consistent with the federal law and regulations.
The Rule of Law and the Danger of the Florida Bar Approach
In jurisdictions like Florida, where the state bar regulates lawyers, bar associations "have the authority to regulate the legal profession by disciplining lawyers or formally bringing lawsuits against them … [and] ensure that the lawyers admitted in that jurisdiction adhere to the" Rules of Professional Conduct, according to Cornell University Law School's Legal Information Institute.[5] The Florida Bar's decision not to investigate fails to recognize this authority.
In addition, should the Florida Bar look into the allegations, the investigation itself would likely have a salutary effect in making high-level officers think twice. It could also remind subordinates that they retain the responsibility to make independent ethical choices when their superiors issue, and refuse to reconsider, directives that represent even arguably reasonable resolutions of questions of professional responsibility.
The Florida Bar noted that the allegations could be refiled once the official leaves office. There will be circumstances where deferring an investigation into occasional missteps or alleged personal peccadilloes of government lawyers may be the appropriate balancing of interests. But this should not be the case when immediate and substantial harm to the rule of law appears to be at issue.
The U.S. federal courts' website defines the rule of law as "a principle under which all persons, institutions, and entities are accountable to laws that are: Publicly promulgated[,] Equally enforced[,] Independently adjudicated[,] And consistent with international human rights principles."[6]
Our American rule of law stems from our history, traditions and our fundamental law — the Constitution. That treasured rule secures our rights, liberties and constitutional freedoms, including equal justice for all.
In order to protect the rule of law and the role of the DOJ in upholding this principle, it is essential that allegations as serious as those in the disciplinary request be thoroughly investigated at the earliest appropriate time, and that consideration be given to appropriate disciplinary action, including even interim orders, if deemed necessary.
The U.S. attorney general has fundamental duties to act in accordance with the best, most responsible traditions of an independent legal profession and their oath of office. These duties include absolute candor to the courts and honesty to others; a duty to ensure that positions advocated by the DOJ are well founded in law and fact and consistent with the national interest; and duties not to demean the courts, or engage in conduct either in or out of court that could prejudice the administration of justice.
The attorney general also has a duty to insulate prosecutorial discretion from politics — discretion to decide who to investigate, who to prosecute, how to prosecute, what punishments to seek, whether and how to negotiate plea bargains, and when or whether to stop prosecutions.
Our profession's values, and the attorney general's oath of office, require that zealous advocacy and personal loyalties be subordinated to these duties, which form the foundations for the rule of law as established in the Constitution and duly enacted laws of the U.S.
And, as the authors of the disciplinary request explain, the Florida Bar should now investigate such allegations "precisely because Ms. Bondi holds this exalted position, with the attendant responsibilities for subordinate lawyers under her authority who carry out her directives." In particular, the conduct they allege would threaten the very concept of due process as a central tenet of our constitutional democracy, as well as respect for the courts, lawyers, the legal system and the rule of law.
The allegations contained in the whistleblower complaint filed by Reuveni after the Florida Bar's decision not to investigate crystallize these concerns. That complaint alleged that senior DOJ leadership expressed an intent to defy court orders, and then "knowingly and willfully" did so; misrepresented facts to the court and directed Reuveni to do so, as well; and then placed him on administrative leave for "refus[ing] to obey an illegal order" from his superiors.[7]
A Better Approach by Courts and State Disciplinary Institutions
Regardless of what the Florida Bar does, other disciplinary authorities in other jurisdictions have an indispensable role to play in assuring that all lawyers, including government lawyers and particularly senior DOJ attorneys, adhere to the rule of law. We hope that authorities will be vigilant and not hesitate to investigate serious, well-supported allegations of misconduct by attorneys appearing to flout the rule of law, and quickly act to sanction those who have engaged in such misconduct.
In addition to state courts and disciplinary authorities, federal courts may discipline lawyers who they admit to appear before them, either as members of the bar of the court generally or on a pro hac vice basis for particular cases. These steps could include personal sanctions against attorneys; denial of, or conditions on, the right to practice in their courts; evidentiary and other sanctions against the government; and even contempt.
Beyond disciplinary actions, other state bar associations might consider issuing guidance to their members through opinions or articles. Continuing legal education programs and webinars reminding lawyers of their ethical duties might also be in order.
All of these institutions should be prepared, when necessary, to take appropriate actions to prevent attorneys from breaching their professional obligations. Compliance with ethical duties toward the courts; the sound administration of justice; and the complete protection of our rights, liberties, constitutional freedoms — including equal justice for all — and the rule of law under the Constitution are far too important to allow allegations of significant ethical lapses by any lawyer go unaddressed when the lawyer may be engaging in a course of misconduct.
This is particularly vital if the lawyer is the nation's chief law enforcement officer.
James Kobak Jr. is a member of the New York County Lawyers Association's Task Force on the Rule of Law. He previously served as president of NYCLA.
Albert Feuer is a member of NYCLA's Task Force on the Rule of Law and founder at the Law Offices of Albert Feuer.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://static01.nyt.com/newsgraphics/documenttools/e285ec96adf8d443/5868d536- full.pdf.
[2] https://www.justice.gov/ag/media/1388521/dl?inline.
[3] See more generally, James Kobak Jr. and Albert Feuer, DOJ Lawyers Aren't the President's — No Matter What a Memo Says, -- US Law Week (May 6,
2025), https://ssrn.com/abstract=5243739.
[4] Leis v. Flynt, 439 U.S. 438, 442 (1979).
[5] https://www.law.cornell.edu/wex/bar_association. In other states, the courts themselves — through bodies they appoint — administer discipline.
[6] https://www.uscourts.gov/educational-resources/educational-activities/overview-rule-
law (last visited July 10, 2025).
[7] See generally David Atkins, DOJ Atty Firing Highlights Tension Between 2 Ethical Duties, Law360.com (June 25, 2025).