Now THIS Is What They Used To Call “Appearance of Impropriety”…

"So, Miss Scarlet!! At last you confess your guilt in this heinous crime! Now that that's over with, would you care to join me for dinner tonight?"

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.”

Exactly.

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.

3 thoughts on “Now THIS Is What They Used To Call “Appearance of Impropriety”…

  1. There’s an issue with the implementation of an “appearance of impropriety” rule. It’s like obscenity: no on can define it, but people know it when they see it. For sanctioning previous conduct, it’s an amalgamous rule that can be used for any reason. Nobody can know that their conduct does not create an appearance of impropriety. Similarly, it can be used prior to conduct to keep a good lawyer away from a case without good reason. Can Scalia’s wife’s actions not create an appearance of impropriety? Of course it can, but enough of an appearance to force Scalia off major cases? Well, that’s in the eye of the beholder.

    Ban on appearance of impropriety are good in concept, but without well defined rules, they are too easy to abuse and/or skirt.

    • And that’s an excellent summary of the ABA’s rationale for junking it. But as Steven Ardler’s critique of my Protest Ethics Code showed, the same objection can be made of any ethical standards, and once they are sufficiently specific to avoid the “whose to judge? objection, they become laws, and can be “lawyered.” In fact, most lawyers regard “appearance of impropriety” as being squarely in the tradition of legal ethics, and pay attention to it. Maybe it’s better as an unwritten standard….not for people like the romantic prosecutor, however.

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