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16 Prof. Law. 1 (2005)

handle is hein.journals/proflw16 and id is 1 raw text is: 2005 Volume 16 Issue Number i Keeping up Appearances Kathleen Maher Conduct provides that [a] judge shall ianon 2 of the Model Code of Judicial avoid impropriety and the appearance of impropriety in all of the judge's activi- ties.1 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. Continued on page 12 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 The appearance of impropriety was first made an explicit part of the lawyer ethics rules when the ABA adopted the Model Code of Professional