kanBARoo Court. 27th Installment. Should the mere appearance of impropriety constitute an ethical infraction?

If the State Bar is competent only to smell smoke and presume fire, the Supreme Court may tolerate the Bar's incompetence because under the prevailing concept of legal ethics the appearance of impropriety constitutes an ethical infraction. Under Canon 9 of the American Bar Association Model Code of Professional Responsibility, "A lawyer should avoid even the appearance of professional impropriety." Canon 9 is persuasive in California but not the law, and the most searching analyses have delivered withering criticism. The California Court of Appeal held:

[T]he appearance of impropriety test is no more than "a simple and soulful rubric that seems to make intuitive sense' but whose alluring charms 'are only surface.' [Citation.] … [I]t is unclear as to whom the conduct in question must appear improper. Some courts think it is 'the public' or an 'average layman." … Still other courts believe the opinion of "the bar" is a relevant consideration. ... Even if there were no conflict as to whom the conduct of an attorney must appear improper, judges lack the empirical data necessary to accurately discern the views of the appropriate group…. "[C]ourts lack both access to reliable facts and a workable method for thinking through, on a case by case basis, the question whether the particular result sought by one or the other of the parties will increase, decrease, or leave unaffected the general level of public or client confidence. [Citation.]" (Gregori v. Bank of America (1989) 207 Cal.App.3d 291, 307.)

The apparent-impropriety concept remains influential, as shown by the dissenting opinion the cited case bears, as well as another California case that criticized the position quoted because the opinion:

[F]ocuses attention on the end result of the challenged conduct without including the paramount concern of preserving public trust in the scrupulous administration of justice and the integrity of the judicial proceedings." (In re Complex Asbestos Litigation (1991) 232 Cal.App. 572, 591-592.)

While all courts agree on the importance of preserving public trust in the courts and attorneys, they have not overcome the Gregori court's epistemic objections. It is reasonable to assume that preventing actual improprieties will favorably affect the public's perception of the law, but no reason has been provided for thinking that preventing perceived improprieties helps, absent actual improprieties. There is reason to think such attempts to prevent merely perceived improprieties backfire, because a perceived-but-not-actual impropriety banned by law or rule is also a limitation on clients' freedom to receive legal services on their terms, imposed without clients receiving offsetting benefit. Client interests are sacrificed for the system and profession's intended good.

The appearance of impropriety is even more dangerous as concept than rule. It serves as a misleading justification, hiding real significance, sometimes concealing important strengths, sometimes deficiencies. The apparent-impropriety rationale conceals, for example, the real purpose of rules against former-client conflicts of interest, a good rule, capable of rigorous and principled justification, as explained by the Supreme Court:

Clients are entitled to vigorous and determined representation by counsel. It is difficult to believe that a counsel who scrupulously attempts to avoid the revelation of former client confidences--i.e., who makes every effort to steer clear of the danger zone--can offer the kind of undivided loyalty that a client has every right to expect and that our legal system demands. Rule 5 operates to preclude any impediment to the fulfillment of an attorney's professional obligation to his client by proscribing any conflict of interest in his representation of past and present clients. (Anderson v. Eaton (1930) 211 Cal. 113, 117.)

Yet, this sound justification is muddied by the immediately following comment:

It is better to remain on safe and secure professional ground, to the end that the ancient and honored profession of the law and its representatives may not be brought into disrepute." (Ibid.)

Ask lawyers about justifying the rules concerning past-client conflict of interest, and you will get back appearance of impropriety. No one will remember the real analysis presented by the Anderson court. Yet lawyers must know how to draw the line correctly, because every court in California agrees that the appearance of impropriety alone is insufficient.

That is, every court except the California State Bar Court. Without acknowledging it, the Bar Court's procedures derive from the apparent-impropriety rule, because only such a rule could justify the superficial basis for charges, a basis that proves only the appearance of impropriety. Only the appearance-of-impropriety rule can explain the widespread assumption that if an attorney is charged, he must be guilty. The Enforcement Division of the State Bar has won this presumption of guilt by tautology rather than demonstration. If the appearance of impropriety is itself impropriety, as ABA Canon 9 demands, then charged is tantamount to guilt. (See also, 46th Installment, "Origins of the Appearance-of-Impropriety Concept.")

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