For Appearance’s Sake: An Empirical Study of Public Perceptions of Ethical Dilemmas in the Legal Profession

Abstract

How can we restore the public’s faith in government institutions, particularly the courts? With the public’s opinion of the legal system at an all-time low, the legal profession faces a crisis of confidence. This Article argues that the “appearance of impropriety” standard should be categorically applied to regulate all members of the legal profession to restore the public’s faith in the profession. The standard is intended to prevent the public’s loss of confidence 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 generally ask whether the conduct in question creates an appearance of impropriety “in the mind of an ordinary knowledgeable citizen.” Critics argue that this “vague” test allows judges to levy disciplinary sanctions based on their idiosyncratic views of ordinary citizens. As such, some jurisdictions apply the standard on a selective basis for only judges and government lawyers, based on the assumption that their appearances of impropriety are more damaging to the public’s confidence. Using a series of original survey experiments, this Article offers the first empirical evidence that determines which ethical dilemmas consistently undermine the public’s confidence in the legal system and thereby provides an empirical grounding for the formerly “vague” standard. Furthermore, this Article finds that the selective application of the standard is misguided. The assumption that judges and government lawyers do greater damage to the public’s confidence than private lawyers is empirically unfounded. This Article suggests that, to restore the public’s faith in the legal system, the standard should regulate all members of the profession for most ethical dilemmas, 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