Although almost every U.S. jurisdiction now has some version of the ABA’s Model Rules of Professional Conduct, some of us who have been around awhile remember the old Disciplinary Rules, which governed lawyer conduct under the former Model Code of Professional Responsibility. (Or maybe you remember the Disciplinary Rules because you practice in a state that was late to adopt a version of the Model Rules. Or maybe, like me, you’ve both been around awhile and live in one of those late-adoption states. I’m talking about you, Ohio.)
In any event, the former Model Code included Canon 9, which stated “A Lawyer Should Avoid Even the Appearance of Impropriety.” While not actually a Disciplinary Rule, the “appearance of impropriety” was “a favorite of some courts, which quoted it with great frequency over the years,” as Ronald Rotunda and John Dzienkowski note in their useful treatise, Legal Ethics — The Lawyer’s Deskbook on Professional Responsibility. It was especially used as a basis for disqualifying lawyers for a broad range of conduct, ranging from conflicts to other kinds of misconduct.
Deeming the “appearance of impropriety” standard to be unfairly vague and imprecise, the Kutak Commission, which drafted the 1983 Model Rules, rejected it. Until its amendment in 2003, Model Rule 1.9, the rule on former-client conflicts, even had a comment consisting of an express critique of the appearance of impropriety as a standard for disqualification, saying that it could “be taken to include any new client lawyer relationship that might make a former client feel anxious,” and that under the standard, disqualification was “little more than a question of subjective judgment by the former client.”
Nonetheless, courts in some jurisdictions have continued to use the appearance of impropriety as a standard for disqualification even after the professional responsibility rules of the state have dropped it. (Prof. Keith Swisher’s excellent blog DQed collects cases here.)
Kentucky used to be one such jurisdiction, but no longer. Earlier this month, in Marcum v. Scorsone, the Kentucky Supreme Court overturned 18 years of precedent, holding that “disqualification based on an appearance of impropriety is inappropriate under the existing Rules of Professional Conduct,” and that if that were the standard, “all the former client has to do is claim discomfort with the subsequent representation to create the appearance that something untoward is going on …” Moreover, the court said, the standard “creates the impression that courts are ruling based on appearances rather than facts.”
The court remanded the case to the trial court so that it could apply the correct standard.
So the appearance of impropriety is dead — at least in Kentucky. If faced with a disqualification motion — or if making one — you should research carefully to see how courts in your jurisdiction treat the old standard. It will make a difference in how easy or hard it might be to prevail, whichever side of the motion you are on.