today in Legal Ethics (May 31, 2010)

On this Memorial Day, here's some of what happening in legal ethics.       .  .  .  .  .       Here's a short, cite-heavy paper by Emile Loza arguing that some understanding of transnational law may be part of a lawyer's duty of basic competence.       .  .  .  .  .       Score one for the lawyers.  The NYT's review of Jack Rakove's new book, Revolutionaries, has this: "The legal profession takes a regular, reflexive drubbing in America. But Mr. Rakove reminds us how lucky we are that so many of our founders had closely studied law. He quotes Edmund Burke, who wrote that devotion to the law 'renders men acute, inquisitive, dexterous, prompt in attack, ready in defense, full of resources.' Burke added: 'They auger misgovernment at a distance; and snuff the approach of tyranny in every tainted breeze.'"  I bought the book in the airport but won't get to it before the summer.       .  .  .  .  .       Judge Raymond McKoski,  "Judicial Discipline and the Appearance of Impropriety: What the Public Sees is What the Judge Gets."  Abstract:

Judges are required to forego a litany of professional and personal behaviors deemed to be inconsistent with the role of the neutral magistrate. For example, codes of judicial conduct prohibit ex parte communications, the misuse of office, public commentary on prohibited topics, and participation in certain civic, religious, and political activities.

In addition to specific rules barring actual improprieties, it is commonly believed that a broader disciplinary standard is necessary to fully safeguard the public’s faith in the judiciary. As a result, under virtually every state judicial code, discipline may be imposed upon a judge for conduct which violates no particular rule but which is thought to create an "appearance of impropriety.”

This Article examines the disciplinary use of the appearance of impropriety standard from a theoretical and practical standpoint. The history of the standard is explored together with the most debated aspect of the rule – whether the appearance of impropriety prohibition can survive a vagueness challenge. The inescapable conclusion is that it cannot. A cost-benefit analysis further discloses that the disadvantages of the rule clearly outweigh its oft-touted but, nevertheless, illusory benefits. It is proposed that the use of the appearance standard as a disciplinary rule should be discontinued or, in the alternative, that a limiting construction should be placed on the "appearance of impropriety" thereby supplying the specificity needed to meet due process requirements.