State Bar Disciplinary Rules

As Applied to Federal Government Attorneys

The purported imposition of exclusive disciplinary jurisdiction by state courts upon federal 

lawyers acting in the scope of their federal authority is subject to the overriding requirements 

of 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 implicitly 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 of 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 of 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 e m o r a n d u m O p in io n f o r t h e D i r e c t o r ,

E x e c u t i v e O f f i c e f o r U n i t 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 Enforcement of the Alabama State Bar.

Paragraph 4 of 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 General, 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 of the Supreme 

Court of Alabama and the Disciplinary Board of the Alabama 

State Bar, hereafter established.

You have indicated that the language of paragraph 4 of the proposed amendments is ambiguous in its application to Assistant Attorneys General within the 

Department. For purposes of this discussion, we have assumed that the proposed 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 of 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 “Disqualification of Prosecutor Because of Former Representation,” 9 Op. O.L.C. 1 (1985), 

we advised you that the Department of Justice has regularly maintained that 

rules promulgated by state courts or bar associations that are inconsistent with 

the requirements or exigencies of federal service may offend the Supremacy 

Clause of 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,” just as a federal employee, under appropriate 

circumstances, may perform authorized federal functions without regard to the 

limits of state criminal law. See Memorandum for Thomas P. Sullivan, United 

States Attorney for the Northern District of Illinois from Mary C. Lawton, 

Deputy Assistant Attorney General, Office of Legal Counsel 14 (Aug. 1, 1978) 

(citing In re Neagle, 135 U.S. 1, 75 (1890)).

The activities of the federal government are presumptively free from state 

regulation, unless Congress has clearly authorized state regulation in a specific 

area. See Hancock v. Train, 426 U.S. 167, 178-79 (1976). State laws or court 

rules regulating the conduct of employees of the United States in the performance of 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 of 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 of continued bar membership where those conditions are 

not inconsistent with the requirements or exigencies of federal employment,” 

and that Congress could reasonably have intended federal employees to be 

subject to “reasonable and established ethical rules for the bar generally.” 

Memorandum of the Department of Justice, “In the Matter of the Petition of the 

Board of Governors of the District of Columbia Bar” 5 (Sept. 11,1979). On the

1 U.S. Const, art. VI, cl. 2 provides: “This C onstitution, and Laws o f the United States which shall be made 

in Pursuance th e re o f. . . shall be the supreme Law of the Land; and the Judges in every State shall be bound 

thereby, any Thing in the Constitution or L aw s of any State to the Contrary notwithstanding.”

2 D epartm ent o f Justice authorization and appropriations statutes routinely provide that the Departm ent's 

funds may not be used to pay the compensation of any person employed as an attorney unless that person is 

duly licensed and authorized to practice as a n attorney under the laws of a state, territory, or the District of 

Colum 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. 95-86, § 202, 91 Stat. 419, 428 (1977); see also Pub L. No. 9 8 ^ 1 1 , 

§ 203(a), 98 Stat. 1545, 1558-59 (1984) (continuing the requirement of § 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 of the Department of 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 obligations 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 between their official duties and state regulation. The decision to authorize a 

Department attorney to take action inconsistent with a relevant state bar standard, 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 of the conflicting 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 of 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 of the Department, we cannot say that this proposed amendment absolutely violates the 

Constitution. Yet, if the assertion of “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.

R a l p h W . T a r r

Acting Assistant Attorney General

Office o f Legal Counsel

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