kanBARoo Court. 46th Installment. Origins of the Appearance-of-Impropriety Dogma

Understanding the California State Bar's dysfunction may lie in legal doctrine's historical course. State Bar jurisprudence reached its apogee with In re Fahey (1973) 8 Cal.3d 842, immediately descending thereafter, and accelerating with In re Rohan (1978) 21 Cal.3d 195, irresistibly influenced by conformity with the national Bar establishment. (Id., at p. 204 [citing "the recommendation of the American Bar Association, as promulgated by the Standing Committee on Professional Discipline"].) Rohan marked the ascendance of the mere-appearance-of-propriety doctrine, central to present State Bar law: bureaucratic reflex, moralism, and legal indifference.

The tabulation of "Observations and Inferences" at the 40th Installment" displays the centrality of the Bar's commitment to discipline for the mere appearance of impropriety. Discipline expressly and tacitly based on this doctrine explains most of the State Bar's other faults. No legal sophistication, only bureaucratic intransigence, is needed when mere appearance suffices to constitute a disciplinable offense. To be accused is to be guilty because leading to accusation, the lawyer's conduct has appeared improper.

In re Fahey, a case dismissed because the court found moral turpitude absent, involved a respondent who didn't file federal income taxes for three years. As Fahey stated and earlier cases suggested, the Supreme Court interpreted Business and Professions Code sections 6101 and 6102 to mean a "[r]espondent is subject to discipline only if he committed a crime involving moral turpitude ... or an act involving moral turpitude, dishonesty, or corruption." (Fahey, at p. 849.) The court defined moral turpitude as "an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man." (Ibid.) While in itself vague, the moral-turpitude standard gained precision in a previous case, which held, "To hold that an act of a practitioner constitutes moral turpitude is to characterize him as unsuitable to practice law." (In re Higbie (1972) 6 Cal.3d 562, 570.)

Fahey, still good law except on the point Rohan overruled, has holdings countering today's State Bar practice. As against cases inferring turpitude from repetition, for example, Fahey held, "There must be more than mere repetition of the same acts to differentiate the offending attorney who is guilty of moral turpitude from the one who is not." (Fahey, supra, at p. 851.) Most importantly, Fahey criticized the:

Several courts [that] have invoked in support of this ground for discipline the precepts of the former Canons of Ethics of the American Bar Association "to uphold the honor and to maintain the dignity of the profession" (Canon 29) and to "observe ... the statute law" and maintain "fidelity to private trust and to public duty, as an honest man and as a patriotic and loyal citizen." (Canon 32)" (Id., at pp. 852-853.)

Offenses that do not involve moral turpitude or affect professional performance should not be a basis for professional discipline simply because they may in some way impair the public image of the profession. Otherwise the imposition of discipline may tend to be influenced by the degree to which the offense has become known to the public. [Citation.] Our standard of moral turpitude depends not on popular impressions but on the violator's own motivation as it relates to his moral fitness to practice law. [Citation.] (Fahey, supra, at p. 853.)

In contrast, Rohan's lead opinion said — over-ruling Fahey's narrow moral-turpitude standard:

An attorney as an officer of the court and counselor at law occupies a unique position in society. His refusal to obey the law, and the bar's failure to discipline him for such refusal, will not only demean the integrity of the profession but will encourage disrespect for and further violations of the law." (Rohan, supra, at p. 203.)

In dissent Acting Chief Justice Tobriner, joined by Justice Mosk, pointed out:

An offense may breach the defendant's duty to society, yet bear no significant relation to fitness to practice. A leading example is Hallinan v. Committee of Bar Examiners ... in which we admitted an applicant to practice law despite prior convictions for assault, battery, disturbing the peace, and trespassing. Conversely, a relatively minor offense may reflect on the practice of law..." (Rohan, supra, at p. 205 [Dissent, Tobriner, C.J.].)

Tobriner and Mosk continue:

The requirement of a specific nexus between the attorney's conduct and the practice of law should not be evaded by assertions that such conduct demeans the integrity of the legal profession or constitutes an example which may encourage others to violate the law. Such assertions merely concoct a method by which a transgression unrelated to legal practice can be magnified by unproven and hypothetical conjectures as to its effect on the opinions of others. (Rohan, supra, at p. 205 [Dissent, Tobriner, C.J.].)

Tobriner and Mosk argue that a broader standard for discipline violates the constitutional principle that the California Supreme Court repeatedly enunciated:

that a person can be barred from the practice of his profession only for reasons related to his fitness or competence to practice that profession [Citation]: to allow discipline for unrelated conduct on the ground that it demeans the integrity of the profession would detract from that fundamental principle. (Ibid.)

The influence of the mere-appearance-of-impropriety doctrine continued to mount. In re Kelley (1990) 52 Cal.3d 487 imposed discipline for repeated intoxicated driving. The Kelley court stressed the way impropriety looks to others, stating:

We think it clear that attorneys should realize that repeated failure to conform their conduct to the requirements of the criminal law and court orders specially imposed on them may call into question their integrity as officers of the court and their fitness to represent clients." (Id., at p. 497.)

Justice Panelli dissented vigorously, calling for dismissal, in words that any respondent opposing State Bar oppression should recall:

In imposing discipline for conduct which may affect petitioner's future performance of her duties, although it has not yet affected her performance, the majority embarks on a dangerous journey… We simply have no right to declare ourselves higher guardians of the 'public safety' and increase the criminal law's punishment for the sole reason that this particular driver happens to be a member of the bar… To discipline this attorney for conduct that may in the future impair her practice of law, without disciplining all attorneys for the same reason, presents insurmountable problems of consistency and fairness. (Kelley, supra, at pp. 500-501 [Dissent, Panelli, J.])

(See also, 27th Installment, "Should the Mere Appearance of Impropriety Constitute an Ethical Infraction.")