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2005
Volume 16
Issue Number 1
Keeping up Appearances
Kathleen Maher
Conduct provides that [a] judge shall
avoid impropriety and the appearance of
impropriety in all of the judge's activi-
ties.' A similarly worded provision
appeared in the Model Code of Professional
Responsibility for lawyers, but was eliminated
when the Code was replaced by the Model Rules
of Professional Conduct. Despite its elimination,
the appearance of impropriety standard contin-
ues to be used in some jurisdictions as a basis for
lawyer disqualification and discipline.
For instance, the West Virginia Supreme Court
recently applied the appearance of impropriety
standard to disqualify a law firm from continuing
to represent a client in litigation.2 The firm in
question represented plaintiffs in an action against
a contractor. While the case was pending, the firm
hired a lawyer from the firm that was representing
the contractor in the same case. Although the
lawyer had not personally worked on the case at
his previous firm, the court found that permitting
the lawyer's new firm to remain in the case would
create an appearance of impropriety.
Quoting a 1985 opinion, the court stated that
Under the Code of Professional Responsibility, a
lawyer may be disqualified from participating in a
pending case if his continued representation
would give rise to an apparent conflict of interest
or appearance of impropriety based upon that
lawyer's confidential relationship with an oppos-
ing party. Judges have broad discretion to dis-
qualify counsel when their continued representa-
tion of a client threatens the integrity of the legal
profession, the court added. Based on the facts
presented and the relatively short period of time
between the lawyer's departing his old firm and
joining his new firm, disqualification was war-
ranted, the court concluded.
Kathleen Maher is Assistant Professionalism Counsel in the ABA Center
for Professional Responsibility, Chicago, Illinois.
Stacks
Received on: 09-23-05
The Professional lawyer
PL
In issuing its opinion, the court made no men-
tion of the fact that West Virginia utilizes the
Rules of Professional Conduct, rather than the
Code of Professional Responsibility, and further-
more that the appearance of impropriety stan-
dard does not appear in the Rules. The court sim-
ply applied the standard in upholding the firm's
disqualification. In doing so, West Virginia joined
several other jurisdictions that adhere to-the ABA
Model Rules of Professional Conduct but use the
Model Code's appearance of impropriety standard
as a basis for disqualification or as an adjunct to
other grounds for disqualification.3
This article will examine the evolution of the
appearance of impropriety standard as applied to
lawyers and its continuing viability in some juris-
dictions, including West Virginia, despite its elim-
ination from the ethics rules. The standard as
applied to judges will also be examined and
prospective changes that may be on the horizon in
light of recently proposed revisions to the Model
Code of Judicial Conduct will be considered.
A BRIEF HISTORY OF THE APPEARANCE OF IMPROPRIETY
IN LAWYER ETHICS RULES
Model Code of Professional Conduct
The appearance of impropriety standard did
not appear in the ABA Canons of Professional
Ethics of 1908, although a similar appearance of
evil doctrine was implicit in several Canons and
was expressly stated in a number of ABA ethics
opinions interpreting them.4 For instance, the
Preamble to the Canons provided that the conduct
and motives of lawyers must merit the approval of
all just men.5 And Canon 29 provided, in part, [A
lawyer] should strive at all times to uphold the honor
and to maintain the dignity of the profession. .6.. 6
The appearance of impropriety was first made
an explicit part of the lawyer ethics rules when the
ABA adopted the Model Code of Professional
Continued on page 12](ViewImageLocal?handle=hein.journals/proflw16&div=1&collection=&method=preview&ext=.png&size=3)
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