appearance of impropriety standard in New Jersey

2015When analyzing conflict assertions, the Court has clearly rejected the doctrine, stating: "In light of the 2004 amendments to the Rules of Professional Conduct that eliminated New Jersey's long-standing prohibition against the appearance of impropriety . . . we hold that the appearance of impropriety standard no longer retains any continued validity." Ethics Op. No. 697, supra, 188 N.J. at 552 .

2015When analyzing conflict assertions, the Court has clearly rejected the doctrine, stating: "In light of the 2004 amendments to the Rules of Professional Conduct that eliminated New Jersey's long-standing prohibition against the appearance of impropriety . . . we hold that the appearance of impropriety standard no longer retains any continued validity." Ethics Op. No. 697, supra, 188 N.J. at 552 .

2022In Kane Properties, LLC v. City of Hoboken, an attorney who represented an objector before the municipal zoning board, subsequently became municipal attorney and rendered advice to the city council that was considering the objector's appeal from the zoning board's approval. 214 N.J. 199 , 208–11 (2013).

2021DelVecchio was involved in." In that regard, the judge observed that under Kane Properties, LLC v. City of Hoboken, 214 N.J. 199 (2013), the appearance of impropriety standard was "[t]he applicable standard in determining the existence of a conflict of interest among municipal officials" such as DelVecchio.

2015See State v. Loyal, 164 N.J. 418, 421, 440 (2000) (upholding entry of mistrial based on the appearance of impropriety where the defendant's lawyer, a public defender, previously represented the State's key witness on an unrelated charge although the witness recanted her previous identification of the defendant); State v. Catanoso, 222 N.J. Super. 641, 647-48 (Law Div. 1987) (finding the appearance of impropriety doctrine and an actual conflict disqualified the defense attorney who previously acted as special counsel for a corporate co- defendant, with whom the State’s key witness was associate

2015See State v. Loyal, 164 N.J. 418, 421, 440 (2000) (upholding entry of mistrial based on the appearance of impropriety where the defendant's lawyer, a public defender, previously represented the State's key witness on an unrelated charge although the witness recanted her previous identification of the defendant); State v. Catanoso, 222 N.J. Super. 641, 647-48 (Law Div. 1987) (finding the appearance of impropriety doctrine and an actual conflict disqualified the defense attorney who previously acted as special counsel for a corporate co- defendant, with whom the State’s key witness was associate

2015The basis of this proscription was the "overriding concern . . . for maintaining public confidence in the integrity of the legal profession" because "appearances can be as important as reality." Inquiry to Advisory Comm., supra, 130 N.J. at 434 (citing Galati, supra, 64 N.J. at 576 ).

2015The basis of this proscription was the "overriding concern . . . for maintaining public confidence in the integrity of the legal profession" because "appearances can be as important as reality." Inquiry to Advisory Comm., supra, 130 N.J. at 434 (citing Galati, supra, 64 N.J. at 576 ).

2013However, the appearance of impropriety standard has never been altered as it relates to judges, see Code of Judicial Conduct, Canon 2 (“A judge should avoid impropriety and the appearance of impi’opriety in all activities.”), and, as our Appellate Division has observed, it remains applicable to municipal officials acting in a quasi-judicial capacity, see Randolph v. City of Brigantine Planning Bd., 405 N.J.Super. 215, 226 , 963 A.2d 1224 (App.Div.2009) (citing Kremer v. City of Plainfield, 101 N.J.Super. 346, 352-53 , 244 A.2d 335 (Law Div.1968)).

2013However, the appearance of impropriety standard has never been altered as it relates to judges, see Code of Judicial Conduct, Canon 2 (“A judge should avoid impropriety and the appearance of impi’opriety in all activities.”), and, as our Appellate Division has observed, it remains applicable to municipal officials acting in a quasi-judicial capacity, see Randolph v. City of Brigantine Planning Bd., 405 N.J.Super. 215, 226 , 963 A.2d 1224 (App.Div.2009) (citing Kremer v. City of Plainfield, 101 N.J.Super. 346, 352-53 , 244 A.2d 335 (Law Div.1968)).

2013However, the appearance of impropriety standard has never been altered as it relates to judges, see Code of Judicial Conduct, Canon 2 (“A judge should avoid impropriety and the appearance of impi’opriety in all activities.”), and, as our Appellate Division has observed, it remains applicable to municipal officials acting in a quasi-judicial capacity, see Randolph v. City of Brigantine Planning Bd., 405 N.J.Super. 215, 226 , 963 A.2d 1224 (App.Div.2009) (citing Kremer v. City of Plainfield, 101 N.J.Super. 346, 352-53 , 244 A.2d 335 (Law Div.1968)).

2013Our traditional explanation of the appearance of impropriety standard recognized that “[t]o maintain public confidence in the bar it is necessary that the appearance of, as well as actual, wrongdoing be avoided.” In re Cipriano, 68 N.J. 398, 403 , 346 A.2d 393 (1975); accord In re Opinion No. 415, 81 N.J. 318, 323 , 407 A.2d 1197 (1979).

2013Our traditional explanation of the appearance of impropriety standard recognized that “[t]o maintain public confidence in the bar it is necessary that the appearance of, as well as actual, wrongdoing be avoided.” In re Cipriano, 68 N.J. 398, 403 , 346 A.2d 393 (1975); accord In re Opinion No. 415, 81 N.J. 318, 323 , 407 A.2d 1197 (1979).

2013However, the appearance of impropriety standard has never been altered as it relates to judges, see Code of Judicial Conduct, Canon 2 (“A judge should avoid impropriety and the appearance of impi’opriety in all activities.”), and, as our Appellate Division has observed, it remains applicable to municipal officials acting in a quasi-judicial capacity, see Randolph v. City of Brigantine Planning Bd., 405 N.J.Super. 215, 226 , 963 A.2d 1224 (App.Div.2009) (citing Kremer v. City of Plainfield, 101 N.J.Super. 346, 352-53 , 244 A.2d 335 (Law Div.1968)).

2004Thus, the bar does not know whether the conduct will be deemed to create the appearance of impropriety until after the Advisory Committee on Professional Ethics or a court reaches that conclusion. [ Ibid. ] Although the Pollock Commission found the appearance of impropriety rule to be inappropriate as a basis for attorney discipline, it found in a further recommendation adopted by the Court that "a court properly may consider the appearance of impropriety as a factor in determining that ... representation poses an unwarranted risk of disservice either to the public interest or the interest of

2004Thus, the bar does not know whether the conduct will be deemed to create the appearance of impropriety until after the Advisory Committee on Professional Ethics or a court reaches that conclusion. [ Ibid. ] Although the Pollock Commission found the appearance of impropriety rule to be inappropriate as a basis for attorney discipline, it found in a further recommendation adopted by the Court that "a court properly may consider the appearance of impropriety as a factor in determining that ... representation poses an unwarranted risk of disservice either to the public interest or the interest of

2000Our ease law concerning both the appearance of impropriety doctrine and the impermissibility of attorney conflicts of interest emphasizes the underlying public interest in instilling and preserving “public confidence in the integrity of the legal profession,” In re Opinion 415, 81 N.J. 318, 323 , 407 A.2d 1197 (1979), and the lawyers’ “duty of loyalty to his or her clients.” In re Opinion 653, 132 N.J. 124, 129 , 623 A.2d 241 (1993).

2000Our ease law concerning both the appearance of impropriety doctrine and the impermissibility of attorney conflicts of interest emphasizes the underlying public interest in instilling and preserving “public confidence in the integrity of the legal profession,” In re Opinion 415, 81 N.J. 318, 323 , 407 A.2d 1197 (1979), and the lawyers’ “duty of loyalty to his or her clients.” In re Opinion 653, 132 N.J. 124, 129 , 623 A.2d 241 (1993).

2000Nevertheless, the factual context that triggers the application of either doctrine, must provide a reasonable basis for concern that involves “something more than a fanciful possibility.” Id. at 132 , 623 A.2d 241 (quoting Higgins v. Advisory Comm. on Professional Ethics, 73 N.J. 123, 129 , 373 A.2d 372 (1977)).

2000Nevertheless, the factual context that triggers the application of either doctrine, must provide a reasonable basis for concern that involves “something more than a fanciful possibility.” Id. at 132 , 623 A.2d 241 (quoting Higgins v. Advisory Comm. on Professional Ethics, 73 N.J. 123, 129 , 373 A.2d 372 (1977)).

2000Given that a defendant can waive constitutional rights, such as the right to an attorney in a criminal case, Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975); State v. Crisafi, 128 N.J. 499, 509 , 608 A.2d 317 (1992), there is no reason why a defendant and the prosecutor could not waive an alleged appearance of impropriety.

2000Given that a defendant can waive constitutional rights, such as the right to an attorney in a criminal case, Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975); State v. Crisafi, 128 N.J. 499, 509 , 608 A.2d 317 (1992), there is no reason why a defendant and the prosecutor could not waive an alleged appearance of impropriety.

2000Ante at 501, 745 A. 2d at 500 . *503 The Court also correctly concludes that the offices are not incompatible under the common law, citing with approval, ante at 501-02, 745 A. 2d at 500 , Chief Justice Weintraub's test for common law incompatibility expressed in Reilly v. Ozzard, 33 N.J. 529, 543 , 166 A. 2d 360 (1960), as occurring only when "in the established government scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation over another." Nevertheless, the Court concludes that petitioner's

2000Ante at 501, 745 A. 2d at 500 . *503 The Court also correctly concludes that the offices are not incompatible under the common law, citing with approval, ante at 501-02, 745 A. 2d at 500 , Chief Justice Weintraub's test for common law incompatibility expressed in Reilly v. Ozzard, 33 N.J. 529, 543 , 166 A. 2d 360 (1960), as occurring only when "in the established government scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation over another." Nevertheless, the Court concludes that petitioner's

2000Ante at 501, 745 A. 2d at 500 . *503 The Court also correctly concludes that the offices are not incompatible under the common law, citing with approval, ante at 501-02, 745 A. 2d at 500 , Chief Justice Weintraub's test for common law incompatibility expressed in Reilly v. Ozzard, 33 N.J. 529, 543 , 166 A. 2d 360 (1960), as occurring only when "in the established government scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation over another." Nevertheless, the Court concludes that petitioner's

2000Ante at 501, 745 A. 2d at 500 . *503 The Court also correctly concludes that the offices are not incompatible under the common law, citing with approval, ante at 501-02, 745 A. 2d at 500 , Chief Justice Weintraub's test for common law incompatibility expressed in Reilly v. Ozzard, 33 N.J. 529, 543 , 166 A. 2d 360 (1960), as occurring only when "in the established government scheme one office is subordinate to another, or subject to its supervision or control, or the duties clash, inviting the incumbent to prefer one obligation over another." Nevertheless, the Court concludes that petitioner's

2000Given that a defendant can waive constitutional rights, such as the right to an attorney in a criminal case, Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975); State v. Crisafi, 128 N.J. 499, 509 , 608 A.2d 317 (1992), there is no reason why a defendant and the prosecutor could not waive an alleged appearance of impropriety.

2000Given that a defendant can waive constitutional rights, such as the right to an attorney in a criminal case, Faretta v. California, 422 U.S. 806 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (1975); State v. Crisafi, 128 N.J. 499, 509 , 608 A.2d 317 (1992), there is no reason why a defendant and the prosecutor could not waive an alleged appearance of impropriety.