The dead appearance of impropriety - the Kansas way

In one of my previous blog posts today I described the so-called "appearance of impropriety standard" as applied to judges and how judges eliminate that standard, without abolishing it, simply by applying "rules of discretion".

Kansas went further than that, eliminating the "appearance of impropriety standard" as applying to lawyer disqualification.

Example - a prosecutor represented you before, and now is prosecuting you in a criminal case.  Of course, the prosecutor knows a lot of privy information about you that he can use against you in the criminal case (whether he openly does it or not).  

At least, his or her prosecutorial discretion to 

(1) bring the charges,  
(2) maintain the charges and 
(3) offer you certain plea bargains or not, as well as 
(4) request certain pre-trial arrest, custody and bail options, and 
(5) request certain post-conviction punishment/sentencing options - 
all of that will be informed by privileged information obtained through prior representation, while you will never be able to prove it without relying on the "appearance of impropriety" standard, for the obvious reason that you cannot X-ray the prosecutor's mental activities.

Yet, now the "appearance of impropriety" standard for attorney, established in many states by ABA rules of professional conduct as well as by state case law and federal constitutional law, the standard which, in the case of a criminal prosecutor or an attorney working for the government becomes a federal due process standard protected by the federal pre-emption doctrine, is now dead in Kansas.

The Kansas Supreme Court simply abolished it, scrapping 18 years of precedent, and I wonder why.

The reason why is, very likely that the Kansas Supreme Court, consisting of judges who are not serving for life and will at some point re-enter the legal profession, and whose relatives or friends may be attorneys, ruled in favor of the legal profession that finds it increasingly difficult to stay afloat because of shrinking base of clients who can afford to pay high fees dictated by attorney marketing which operates not as consumer protection measure, but as a market restrictions by lawyers for (politically connected) lawyers.

That appears to be the only reason why a perfectly good 18-year precedent was scrapped and why lawyers are allowed a wider latitude to represent clients with potentially conflicting interests.  Otherwise the poor lawyers will starve and will not be able to hire judges at the end of their judicial careers.

And that, ladies and gentlemen, is an appearance of impropriety that nothing can abolish.  It stinks.