As faith in government institutions plummets, the legal profession continues to ponder what it can do to reverse this trend. Bar association talks and panel discussions tackle what role the profession can play in upholding the rule of law and democracy. Most of these discussions are theoretical. Some are grounded in constitutional law and the rules of professional conduct, but few draw on empirical work to answer this critical question. Matthew Kim begins to fill this hole with his article, For Appearance’s Sake: An Empirical Study of Ethical Dilemmas in the Legal Profession, which draws on original data to identify when the public loses faith in lawyers and judges.
So much of the law governing lawyers rests on untested empirical assumptions. Kim questions some of these hypotheses and intuitions, drawing useful conclusions for lawyer regulation in the process. Kim asks when private lawyers, judges, and prosecutors ought to be sanctioned for the appearance of impropriety. He does so by setting out to understand what it is that leads the public to lose faith in the legal system. In other words, what sort of behavior by lawyers triggers a decline in confidence in the judicial process? Not only does his article begin to answer this relevant and pressing question, it also provides a roadmap for addressing similar unproven assumptions that form the cornerstone of the system of lawyer regulation.
Specifically, Kim sets up his inquiry to determine what conduct by lawyers and judges undermines faith in the judicial system even though it may not technically violate specific rules of professional conduct. By doing so, he seeks to shed light on what the general prohibition against the “appearance of impropriety” means in the ethical codes of lawyers and judges. One might assume that the appearance of impropriety standard does not figure strongly in the contemporary law governing lawyers or that it is confined to government lawyers and judges, but Kim carefully chronicles both the history of the concept and its continued relevance.
As Kim notes, the 1908 Canons of Professional Ethics included a general prohibition against the appearance of impropriety. While this was merely aspirational, the drafters of the Model Code carried the concept forward and many states include this general prohibition in their rules governing lawyer conduct even when they did not violate a specific rule. Most states retain a prohibition against the appearance of impropriety despite the fact that in 1983, the drafters of the Model Rules of Professional Conduct omitted it. Some of these states allow for the disqualification of private lawyers when the sole basis for doing so is the appearance of impropriety, while others consider the appearance of impropriety as a factor in determining lawyer discipline.
Those who support the appearance of impropriety standard justify it by insisting that lawyers’ conduct that complies with the rules of professional conduct can still cause the public to lose faith in the judicial system. This, in turn, undermines the legitimacy of courts. To test this premise, Kim identifies three types of behavior that do not violate the rules of professional conduct but may still cause a decline in faith in courts and the profession. He concludes that a potentially imputed conflict, communication with a person who seemed to be represented by counsel, and the failure to report client fraud have a measurable effect on the public’s faith in the judicial system.
Basing his conclusion on a survey response to series of hypothetical scenarios about lawyers, Kim reasons that conduct like this ought to be sanctioned under the appearance of impropriety standard because his data confirms the empirical assumption that it undermines the legitimacy of courts. While interesting and provocative, this conclusion is not inevitable. Perhaps, instead, the public needs to be better informed or educated about lawyers and their proper role. The contours of the rules regarding conflicts, communications with represented persons, and reporting client fraud are, after all, designed to balance different interests.
If lawyers are disciplined for behavior that is not covered by the rules under the appearance of impropriety standard, it might tilt this balance in an undesirable way, chilling lawyers from engaging in useful advocacy. In addition, given the fact-specific scenarios involved in Kim’s research, it would be hard for lawyers to structure their representations to avoid discipline without more guidance about what specific conduct would subject them to discipline.
Many states hold judges and government lawyers to a different standard, reasoning that these are positions of trust and therefore even an appearance of impropriety can have a grave effect on the legitimacy of the judicial system. Some states that do not authorize discipline against private lawyers for engaging in conduct that involves an appearance of impropriety do subject government lawyers and judges to this standard.
Kim’s empirical work casts doubt on this distinction. His data suggest that the public does not distinguish between private lawyers and government lawyers or judges. The nature of the lawyer’s role as a private attorney, government lawyer, or judge does not determine whether and how much faith the public loses in the judicial system. From this, Kim concludes that all lawyers should have to avoid an appearance of impropriety, not just government lawyers and judges.
Again, Kim’s work provokes important questions. Is there a reason to treat government lawyers and judges differently even if their misconduct doesn’t disproportionately lead the public to lose faith in institutions? As Justice Brandeis noted in a different context: “Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.” Olmstead v. United States, 277 U.S. 438, 468 (1928) (Brandeis, J., dissenting). In the context of legal ethics, perhaps the profession is watching government lawyers and judges and modeling its conduct on theirs. In addition, the nature of the government lawyer’s client, which is often an agency head or the public broadly, may also mandate a different calculation. This may suggest other reasons for holding government lawyers to a higher standard even if the public does not see the relevance of the distinction for its faith in legal institutions.
Grounding important ethical questions in empirical work brings a new perspective to significant problems and can lead the profession to revisit some of its most basic assumptions. Kim’s work is an important contribution. Even if the reader does not fully embrace all of his conclusions, his research invites the profession to refine its analysis and ask more precise questions in addressing lawyer misconduct and for that reason it is a critical contribution that provides a model for future research as well.
