Ethics for New Lawyers: The Appearance of Impropriety
Recent events have inspired discussion about the concept of the “appearance of impropriety” by both legal ethics lawyers and in the mainstream media. Those events include the motion to disqualify Fani Willis, the District Attorney of Fulton County, Georgia, whose hearing was broadcast live to the nation, and recent news stories concerning the controversial flags flown at the homes of U.S. Supreme Court Justice Samuel Alito.
These events draw widespread attention because of their political implications in the polarized environment of the United States today. Ethics lawyers take notice because of the uncertain nature of the appearance of impropriety standards and its limitations as a useful concept for deciding when public officials should be disqualified or recuse themselves from legal matters.
The phrase “appearance of impropriety” does not appear either in the original 1928 California Rules of Professional Conduct or in the 1908 American Bar Association (ABA) Canons of Professional Ethics, to which the original California rules commend the reader. The 1928 California Rules were intended strictly as a set of disciplinary rules, and not as a comprehensive statement of all possible norms of professional conduct.
Even 1908 Canons, a much more expansive and wordy exposition of professional norms, states that “no code or set of rules can be framed which will particularize all the duties of the lawyer in the varying phases of litigation and in all the relations of professional life.” In that era, there existed unwritten professional norms whose violation was subject to an “I know it when I see it’ standard based on a shared understanding of what it means to be a lawyer.
Moving forward 60 years to the ABA Model Code of Professional Responsibility, the appearance of impropriety makes its appearance in Canon 9, which states that a lawyer should avoid even the appearance of professional impropriety. EC-1[1] expands on this simple statement by saying that “[c]ontinuation of the American concept that we are to be governed by rules of law requires that the people have faith that justice can be obtained through our legal system. A lawyer should promote public confidence in our justice system and the legal profession.”
EC-2 goes on to state that “[p]ublic confidence in law and lawyers may be eroded by irresponsible or improper conduct of a lawyer. On occasion, ethical conduct of a lawyer may appear to laymen to be unethical. When explicit ethical guidance does not exist, a lawyer should determine his conduct by acting in a manner that promotes public confidence in the integrity and efficiency of the legal system and the legal profession.”
Discipline rule D.R. 9-101 restates this proposition and cites specific examples of lawyers accepting employment in matters where the lawyer has acted in a judicial capacity or matters where the lawyer acted in the capacity of a public employee and should not imply that he (sic) can influence a tribunal, legislative body or public official. D.R. 9-102, the other disciplinary rule appearing under Canon 9, refers to the handling of client funds and is similar to our current California Rule of Professional Conduct 1.15.
California Formal Ethics Opinion 1981-63 cites Canon 9 in its analysis of the question of whether the law firm of a city council member may ethically represent tort plaintiffs in actions against the city when the city has given its informed consent. The opinion concludes that informed consent from the city may not be sufficient, and it cites the existing California Rules of Professional Conduct that deal with conflicts of interest.
After noting the appearance of impropriety does not appear in the California Rules of Professional Conduct, Opinion 1981-63 cites to a number of cases concerned with preserving public confidence in the judicial process, including People v. Rhodes (1974) 12 Cal.3d 180. In Rhodes, the Supreme Court of California held that a city attorney with prosecutorial responsibilities may not defend a person accused of a crime. After citing the conflicting loyalties of defense counsel and prosecutor, the Court said, on page 185:
[T]here are other compelling public policy considerations which render it inappropriate for a city attorney with prosecutorial responsibilities to represent criminal defendants. It is essential that the public have absolute confidence in the integrity and impartiality of our system of criminal justice. This requires that public officials not only in fact properly discharge their responsibilities, but also that such officials avoid, as much as is possible, the ‘appearance’ of impropriety.
Avoiding the appearance of impropriety is intimately related to the idea of preserving public confidence in the legal profession and, thus, the judicial system. Emphasis is added because this by nature means that practical definitions in the context of a judicial decision may be highly illusive.
The “appearance of impropriety” is sometimes referred to as “the smell test.” The effable and emotional nature of odor (commonly associated with disgust) colors the finding of an appearance of impropriety. While, on its surface, Judge Scott McAfee’s decision in the Fani Willis case found no actual conflict of interest requiring her removal, he did find impropriety and referred to the “odor of mendacity” that justified removing subordinate attorney Nathan Wade from the case.
The subjective nature of the appearance of impropriety standards has led to their being abandoned in lawyer disqualification cases, even in cases involving public officials. For this reason, California case law since Rhodes has abandoned the appearance of impropriety as a basis for decision in a disqualification case. (See, e.g., People vs. Prisica(2006) 138 Cal.App.4th 189, 194.) In Prisica, the Court of Appeal applied Penal Code section 1424, which requires that a criminal prosecutor can only be disqualified if a conflict of interest exists that would make it unlikely that the defendant could receive a fair trial.
The ABA Model Rules of Professional Conduct promulgated in 1983 eliminated the “appearance of impropriety” previously articulated in Canon 9. On the judicial side, the appearance of impropriety continues to be an accepted concept.
Canon 2 of the California Code of Judicial Conduct provides: A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE’S ACTIVITIES – capital letters, just as in the original. Canon 2 goes on to state:
Promoting Public Confidence. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. A judge shall not make statements, whether public or nonpublic, that commit the judge with respect to cases, controversies, or issues that are likely to come before the courts or that are inconsistent with the impartial* performance of the adjudicative duties of judicial office.
ADVISORY COMMITTEE COMMENTARY: Canons 2 and 2A
Public confidence in the judiciary is eroded by irresponsible or improper conduct by judges.
A judge must avoid all impropriety and appearance of impropriety. A judge must expect to be the subject of constant public scrutiny. A judge must therefore accept restrictions on the judge’s conduct that might be viewed as burdensome by other members of the community and should do so freely and willingly.
In federal courts, 28 U.S.C section 455 governs judicial disqualification with the important exception of the U.S. Supreme Court. It mandates that a federal judge must disqualify themselves in any matter where the judge’s impartiality might reasonably be questioned.
It appears that preserving public confidence in the judiciary is more important than preserving public confidence in the legal profession and justifies a higher standard. One ethics lawyer has observed that for all the problems the subjective nature of the appearance of impropriety standard creates, we are stuck with it, at least with regard to judicial disqualification.
In a highly polarized political climate where judges are perceived as political actors, it is more difficult than ever to reach a consensus on what conduct diminishes public confidence in the judiciary when preserving public confidence in it is more important than ever.
[1] The 1969 Model Code of Professional Responsibility is divided into EC – ethical considerations – and DR – disciplinary rules, and attempted to incorporate both aspirational guidance about how a lawyer should behave and enforceable rules to be used to determine disciplinary sanctions.