The “appearance of impropriety” standard should be categorically applied to regulate all members of the legal profession. The standard is intended to prevent the public’s loss of confidence in the legal system by disciplining members of the profession who appear to act improperly even if they do not violate specific ethics rules.
When applying the standard, courts ask whether the conduct in question creates an appearance of impropriety “in the mind of an ordinary knowledgeable citizen acquainted with the facts.” However, critics argue that this vague test allows judges to levy disciplinary sanctions based on their idiosyncratic, empirically unfounded views of how ordinary citizens will react. As such, some jurisdictions only apply the standard on a selective basis for judges and government lawyers based on the assumption that their appearances of impropriety are more damaging to the public’s confidence in the legal system.
Using a series of survey experiments, this article offers the first empirical evidence that most, if not all, common ethical dilemmas that do not implicate specific ethics rules consistently undermine the public’s confidence in the legal system. These results suggest that the standard should regulate all members of the legal profession, even when they do not violate specific ethics rules.
Kim, Matthew, Avoiding Even the Appearance of Impropriety: An Empirical Study of Public Perceptions of Ethical Dilemmas in the Legal Profession (May 9, 2020).