Under 28 U.S.C. § 530C(c)(1), the Department is prohibited from paying compensation to an attorney who is not “duly licensed and authorized to practice in a State, territory, or the District of Columbia.”

Consistent with this statute, every individual employed as a Department attorney, regardless of title, level of position, pay plan, occupational series, or the nature of the legal work required, must continuously maintain “active” bar membership in at least one state, territory, or the District of Columbia during employment. This requirement also applies to attorneys who are not hired into attorney positions but who nonetheless provide legal advice or are otherwise engaged in the practice of law. Department attorneys with questions about whether a particular membership status satisfies the Department’s “active” membership requirement should consult an appropriate ethics advisor to determine whether the membership category meets the Department’s requirement. PRAO also provides advice on this issue. Membership in a federal court bar alone does not satisfy this requirement. Compliance with the bar membership requirement is the personal responsibility of the attorney. The Department does not pay bar membership dues or registration fees to licensing jurisdictions on behalf of its attorneys or reimburse attorneys for those costs.

Every Department attorney also is personally responsible for annually certifying compliance with this credentialing requirement.

Attorneys must immediately self-report to OPR any lapse in active bar membership during Department employment. Employees also must self-report to their component management for referral to the appropriate offices, which includes EOUSA OGC (in the case of Assistant U.S. Attorneys), PRAO, OARM, and JMD’s Finance Staff. PRAO can provide advice regarding professional responsibility issues arising from a bar membership lapse. If a component discovers that an attorney’s bar license has been suspended or revoked, the component must immediately report the matter to the appropriate offices. Pending resolution of the attorney’s legal ability to practice law, and subject to any advice and guidance that PRAO may provide, the component must take all necessary and appropriate steps to notify tribunals and temporarily reassign the employee from representational duties, counseling, and advisory work.

Because the Department does not have authority to compensate an attorney with a bar lapse, it is essential that the Department take action once it has notice that one of its attorneys has a lapse. When a Department attorney has a current bar lapse, the employing component head, U.S. Attorney, or U.S. Trustee must direct the attorney in writing immediately to cease performing representational or counseling work for the United States, or rendering any legal advice to the United States, pending reinstatement to an active bar membership status. The employing component head, U.S. Attorney, or U.S. Trustee should obtain the attorney’s written acknowledgment of that directive. The employing component head, U.S. Attorney, or U.S. Trustee may reinstate the attorney to representational, counseling, and advisory work only with documentation of the attorney’s reinstatement to active bar membership. This reinstatement should be documented.

The Department considers payment of salary to attorneys performing representational, counseling, or advisory work during a period of bar lapse to be an overpayment. The Department pursues repayment of salary paid during a bar lapse in appropriate circumstances. Attorneys with overpayment debt are entitled to seek an internal review of the indebtedness, as well as an equitable waiver and/or compromise. See 5 U.S.C. § 5584; DOJ Order 2120.4F, Waiver and Compromise of Claims for Debts Owed to the Department of Justice by Its Employees (2009).

Recent law school graduates hired as law clerks through the Attorney General’s Honors Program without active bar status should take care not to be held out as attorneys, such as by colleagues who include their names on court documents. Those without active bar status also must not engage in the practice of law.

[updated September 2018]