Seton Hall Law Review
Sixty-five years ago, an American Bar Association (ABA) committee interpreting the Canons of Professional Ethics (Canons) concluded that it would be professionally improper for a part-time prosecutor to agree to defend an individual in a civil action while simultaneously prosecuting him on felony charges. The committee acknowledged that the representation of conflicting interests is ordinarily proper with the respective clients' consent. But it said that client consent does not suffice in a case involving a public officer, who has a duty "to be and remain above all suspicion, even at personal financial sacrifice." It concluded that such "[a]n attorney should not only avoid all impropriety but should likewise avoid the appearance of impropriety." The opinion was unremarkable but for the biblically resonant exhortation to "avoid the appearance of impropriety."- The phrase, capturing the principle that lawyers in public life, like judges, should err on the side of caution, was invoked by courts only rarely over the next thirty-five years. Nonetheless, in 1969, when the ABA replaced the Canons with the Model Code of Professional Responsibility (Model Code or Code)," the moral obligation to "avoid the appearance of impropriety" was incorporated in the title of a disciplinary rule whose provisions addressed the integrity of judicial and public decision making in a "canon" (an "axiomatic norm" from which disciplinary rules were derived);1o and in several "ethical considerations" (aspirational principles)." Within a few years, every state, with the exception of California, adopted a version of the Model Code recognizing this obligation. To the ABA drafters, the injunction to avoid the appearance of impropriety was meant to serve as an aspirational principle to guide lawyers in the exercise of their independent judgment, and perhaps as a principle of interpretation, calling for restrictive readings of the disciplinary rules in areas of uncertainty. It was not intended to serve as a disciplinary standard or a disqualification rule." Courts, disciplinary bodies, and ethics committees soon discovered, however, that the Code's disciplinary rules did not adequately address the full spectrum of lawyers' questionable conduct. Some seized upon the appearance of impropriety language as a catch-all to address the Code's perceived shortcomings. As a result, these institutions soon began to rely on the appearance of impropriety standard in evaluating the propriety of lawyers' conduct. Further, they came to use it not only in opinions addressing government lawyers' conflicts of interest, but also in addressing privately retained lawyers' conflicts of interest. In response, a number of courts and commentators, together with the ABA's ethics committee, took the view that it was inappropriate to employ so vague a standard" for anything other than lawyers' individual guidance." Their conviction that more precise and objective measures were needed for disciplinary and disqualification purposes carried the day in 1983 when the ABA, in replacing the Model Code with the Model Rules of Professional Conduct (Model Rules),pointedly eliminated the appearance of impropriety standard.' In the succeeding years, the overwhelming majority of states adopted provisions based on the ABA Model Rules and all but one, in doing so, followed the ABA's lead. New Jersey, the maverick, went in the opposite direction when it revised its ethical rules in 1984 in response to the new ABA model. Contrary to recommendations of the committee it had appointed to review the ABA's work product, the New Jersey Supreme Court adopted several provisions that specifically preserved the appearance of impropriety standard to address purported conflicts of interest. Hence, the question: Should the appearance of impropriety rule be eliminated in New Jersey-or revived everywhere else? In reply, this Article demonstrates that both the meaning and the utility of the appearance of impropriety rule depend on the con- text in which it is used. Focusing on how the rule has developed and been applied in New Jersey, the Article identifies the virtues of the rule in contexts involving alleged conflicts of interest on the part of lawyers for public entities and in related contexts where the public as a party has a direct stake. These are, not surprisingly, the contexts in which the rule originated. In contrast, the Article argues that the rule has nothing to commend it in contexts involving lawyers for private parties in which the public has no stake. By way of background, Part I of this Article traces the development of New Jersey's appearance of impropriety rule. Part II discusses how the doctrine is presently applied in cases involving the public interest and suggests that, in this realm, the rule performs a useful function, albeit one that would be better served by more specific rules. Finally, using a recent New Jersey ethics opinion as an illustration, Part III identifies the deficiencies of the rule in cases involving exclusively private interests.
28 Seton Hall L. Rev. 315 (1997-1998)