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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-medium wp-image-1601" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2015/04/Blind-justice-222x300.jpg" alt="Blind justice" width="222" height="300">Although almost every U.S. jurisdiction now has some version of the ABA&rsquo;s Model Rules of Professional Conduct, some of us who have been around awhile remember the old Disciplinary Rules, which governed lawyer conduct under the former Model Code of Professional Responsibility. &nbsp;(Or maybe you remember the Disciplinary Rules because you practice in a state that was late to adopt a version of the Model Rules. &nbsp;Or maybe, like me, you&rsquo;ve both been around awhile and live in one of those late-adoption states. &nbsp;I&rsquo;m talking about you, Ohio.)
In any event, the former Model Code included Canon 9, which stated &ldquo;A Lawyer Should Avoid Even the Appearance of Impropriety.&rdquo; &nbsp;While not actually a Disciplinary Rule, the &ldquo;appearance of impropriety&rdquo; was &ldquo;a favorite of some courts, which quoted it with great frequency over the years,&rdquo; as Ronald Rotunda and John Dzienkowski note in their useful treatise, Legal Ethics &mdash; The Lawyer&rsquo;s Deskbook on Professional Responsibility. &nbsp;It was especially used as a basis for disqualifying lawyers for a broad range of conduct, ranging from conflicts to other kinds of misconduct.
Deeming the &ldquo;appearance of impropriety&rdquo; standard to be unfairly vague and imprecise, the Kutak Commission, which drafted the 1983 Model Rules, rejected it. &nbsp;Until its amendment in 2003, Model Rule 1.9, the rule on former-client conflicts, even had a comment consisting of an express critique of the appearance of impropriety as a standard for disqualification, saying that it could &ldquo;be taken to include any new client lawyer relationship that might make a former client feel anxious,&rdquo; and that under the standard, disqualification was &ldquo;little more than a question of subjective judgment by the former client.&rdquo;
Nonetheless, <a href="http://www.americanbar.org/content/dam/aba/migrated/judicialethics/resources/TPL_AppearanceofImpropriety.authcheckdam.pdf">courts in some jurisdictions have continued to use</a> the appearance of impropriety as a standard for disqualification even after the professional responsibility rules of the state have dropped it. &nbsp;(Prof. Keith Swisher&rsquo;s excellent blog DQed&nbsp;collects cases <a href="http://dqed.com/2014/10/19/the-appearance-of-impropriety/">here</a>.)
Kentucky used to be one such jurisdiction, but no longer. &nbsp;Earlier this month, in <a href="http://law.justia.com/cases/kentucky/supreme-court/2015/2014-sc-000172-mr.html">Marcum v. Scorsone</a>, the Kentucky Supreme Court overturned 18 years of precedent, holding that &ldquo;disqualification based on an appearance of impropriety is inappropriate under the existing Rules of Professional Conduct,&rdquo; and that if that were the standard, &ldquo;all the former client has to do is claim discomfort with the subsequent representation to create the appearance that something untoward is going on ...&rdquo; &nbsp;Moreover, the court said, the standard &ldquo;creates the impression that courts are ruling based on appearances rather than facts.&rdquo;
The court remanded the case to the trial court so that it could apply the correct standard.
So the appearance of impropriety is dead &mdash; at least in Kentucky. &nbsp;If faced with a disqualification motion &mdash; or if making one &mdash; you should research carefully to see how courts in your jurisdiction treat the old standard. &nbsp;It will make a difference in how easy or hard it might be to prevail, whichever side of the motion you are on.
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core/freeform

Ethics

Legal Ethics, Professional Responsibility and the Business of Law

“Appearance of impropriety” is now dead in Kentucky