Avoiding Even the Appearance of Impropriety: An Empirical Study of Public Perceptions of Ethical Dilemmas in the Legal Profession

Posted: 11 May 2020

See all articles by Matthew Kim

Matthew Kim

Harvard Law School; Harvard Government Department; Harvard Institute for Quantitative Social Science

Date Written: May 9, 2020

Abstract

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.

Keywords: appearance of impropriety, public opinion, legal profession, professional responsibility, conflict of interest

JEL Classification: K00, K39, K40, K41, K49

Suggested Citation

Kim, Matthew, Avoiding Even the Appearance of Impropriety: An Empirical Study of Public Perceptions of Ethical Dilemmas in the Legal Profession (May 9, 2020). Available at SSRN: https://ssrn.com/abstract=3596957

Matthew Kim (Contact Author)

Harvard Law School ( email )

1563 Massachusetts Avenue
Cambridge, MA 02138
United States

Harvard Government Department ( email )

1737 Cambridge Street
Cambridge, MA 02138
United States

Harvard Institute for Quantitative Social Science ( email )

1737 Cambridge Street
Cambridge, MA 02115
United States

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