The prohibition against attorneys engaging in conduct that creates “the appearance of impropriety” was eliminated from the legal ethics rules (though not the judicial ethics rules) a long time ago, almost 30 years. Periodically a case will arise in which its absence is felt. The nice thing about the appearance of impropriety category is that it was flexible enough to use to sanction lawyers who figured out ways to make the profession look slimy without running squarely afoul of other rules…like San Diego prosecutor Ernie Marugg.
Marugg, it is alleged, used his defendants list as his little black book…seeking romantic relationships with the women he prosecuted after their trials were over. His habit was investigated one, but no specific ethical violation could be found. What would it be? Was he too easy on the women he was duty bound to prosecute zealously? One woman who pleaded guilty when Marugg prosecuted her is now suing him, claiming that his personal interest in her caused him to be biased against her. Huh? How does that work? “You always hurt the one you love,” as the old song says?
“It’s hard for me to see how there is any kind of a conflict if these women pleaded guilty at a time when he wasn’t pursuing an affair with them, but then after they get together,” says David Carr, a former state bar prosecutor and ethics expert. Laurie Levenson, a former prosecutor and now a professor at Loyola Law School in Los Angeles, notes, “It makes you begin to wonder what’s on his mind when he’s prosecuting these cases.”
It does indeed. But there is no ethics rule against a lawyer “doing stuff after the trial that makes people wonder what the heck he was he was thinking about during the trial.” There used to be, of course. It was called “the appearance of impropriety.”
Jan Stiglitz, a professor at California Western School of Law, agrees with this without actually using the now-disfavored phrase. “It just looks bad,” he told the media. “If you are a prosecutor, you just don’t want any member of the public to have a question whether there was any action on your part that was colored or motivated by your personal interest.”
Marugg, over 70 now, is retired, the lawsuit against him by a former object of his affections makes no sense, and his icky use of the D.A.’s office as his personal dating bar seems beyond redress. The American Bar Association is once again revising its rules, but there have been no rumblings that the old, vague prohibition against the appearance of impropriety is on the way back. Too bad.
Sometimes it comes in handy.