Appearance of Fairness

In the middle of my former career as a lawyer, the Appearance of Fairness Doctrine began to develop. In a nutshell, the doctrine said a lawyer or judge should not only avoid conflicts of interest but also avoid anything that would appear to a reasonable observer to be a conflict of interest. The premise of the doctrine was that the integrity of the law is more important than the personal desire of a judge or lawyer to be able to do something that, though not in fact wrong, looks wrong in the eyes of the public. In order for the public to have confidence in our legal system, the system not only has to be fair, it also has to look fair.

I agreed with the Appearance of Fairness Doctrine then and I agree with it now. Lawyers are officers of the Court, the judicial branch of our government and should be held to higher standards of conduct than citizens in general. The same goes for legislators and for government executives. No one has a right to hold such positions that is as great as the right of the public to have the confidence that our government is being run fairly.

When conflicts issues arise, the stakes for the person with the apparent conflict are relatively low. The lawyer may have to step aside from the case and give up the prospective fee to let some other lawyer handle it. The committee chair may have to accept appointment to a different committee. The legislator may have to decline the special favor offered by a lobbyist. But the stakes for the public are high indeed - every time someone in government looks like they have their hand in the cookie jar, the public becomes more disenchanted and less inclined to continue playing their vital role as informed citizens.

Ego often appears to play an unbilled role in these matters. The person with the apparent conflict frequently expresses a belief that if they step aside, no one else could possibly do as good a job for the client or for the public. But if there was nothing to be gained personally, I doubt the professional concern would be very high.

The machinations of the Republican in the US House of Representatives to treat their Majority Leader Tom Delay as more important than the public perception of the integrity of the House is so shameful that many House Republicans, including the Republican Chair of the House Committee on Ethics have expressed publicly their embarrassment. Nevertheless, the House Republicans continue to vote to change their own rules and those of the House to make the personal ambitions of Delay more important than the integrity of the people’s House.

Here is an NPR story with an interview of the Republican Chair of the House Committee on Ethics, who believes he will be removed from his Chair: http://www.npr.org/rundowns/segment.php?wfId=4270617