               IN THE SUPREME COURT OF NORTH CAROLINA

                                     No. 310A16

                               Filed 8 December 2017
 DENNIS WORLEY, STERLING KOONCE, FLYING A LIMITED PARTNERSHIP
 L.P., JOSEPH W. FORBES JR., KENNETH CLARK, JAMES BOGGESS, JOEL
 WEBB, JAIMIE LIVINGSTON, JAMES E. BENNETT JR., DAVID MINER,
 RONALD ENGLISH, and MDF, LLC
              v.
 ROY J. MOORE, PIERCE J. ROBERTS, DAVID BROWN, MICHAEL ADAMS,
 CHRISTOPHER BAKER, JAMES KERR, FRANK McCAMANT, NEIL KELLEN,
 GINI COYLE, JOSEPH MOWERY, TOSHIBA CORPORATION, ALAMO
 ACQUISITION CORP., and STEPHENS, INC.



      Appeal pursuant to N.C.G.S. § 7A-27(a)(3) from an order dated 13 May 2016

by Judge Gregory P. McGuire, Special Superior Court Judge for Complex Business

Cases appointed by the Chief Justice under N.C.G.S. § 7A-45.4, in Superior Court,

Columbus County. Heard in the Supreme Court on 29 August 2017.


      Nexsen Pruet, PLLC, by R. Daniel Boyce and David S. Pokela; and Ganzfried
      Law, by Jerrold J. Ganzfried, pro hac vice, for plaintiff-appellees.


      Kilpatrick Townsend & Stockton LLP, by Adam H. Charnes and John M. Moye,
      for defendant-appellants.


      NEWBY, Justice.


      In this case we consider whether the trial court properly disqualified

defendants’ counsel under North Carolina Rule of Professional Conduct 1.9(a). This

rule balances an attorney’s ethical duties of confidentiality and loyalty to a former

client with a party’s right to its chosen counsel. The rule permits disqualification of
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an attorney from representing a new client if there is a substantial risk that the

attorney could use confidential information shared by the client in the former matter

against that same client in the current matter. This analysis requires the trial court

to determine whether confidential information that would normally have been shared

in the former matter is also material to the current matter. To do so, the trial court

must objectively assess the scope of the representation and whether the matters are

substantially related. Rather than applying an objective test, here the trial court

disqualified defendants’ counsel based on the former client’s subjective perception of

the past representation as well as the now replaced “appearance of impropriety” test.

As a result, we reverse the trial court’s decision and remand this matter to that court

for application of the appropriate legal standard.

      The factual background leading to the instant litigation involves three other

disputes, all relating to plaintiff Joseph W. Forbes’s former employer Consert, Inc.

(Consert):   a patent dispute between Forbes and Consert (the patent dispute),

Forbes’s 220 shareholder inspection rights action against Consert (the 220 action),

and a contract dispute between Itron, Inc. (Itron) and Consert (the Itron litigation).

      Plaintiff Forbes is one of thirteen named plaintiffs in the present action, all

former shareholders of Consert. Beginning in 2008, Forbes was a shareholder and

member of the Board of Directors of Consert and served as Chief Operating Officer.

In the fall of 2011, Forbes was removed as an officer and director but remained a

significant shareholder. Soon after his removal, Forbes and Consert disagreed about

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Forbes’s unpaid compensation and ownership of certain patents (the patent dispute),

but the dispute never resulted in direct litigation even though Forbes was

represented by counsel.

      Sometime in 2012, Toshiba, a technology company, expressed interest in

purchasing Consert. Concerned about the proposed sale, Forbes sued Consert in

December 2012 under Section 220 of the Delaware General Corporation statutes (the

220 action), asserting his shareholder rights and requesting certain corporate records

regarding the sale. In the 220 action, Forbes referenced, inter alia, the ongoing patent

dispute in his allegations concerning Consert’s mismanagement.

      At the same time, Consert was also defending a lawsuit filed by Itron, a

licensee and successor in interest to a development agreement with Consert, over

certain payment terms under that agreement (the Itron litigation). Based on Forbes’s

allegations in the 220 action, Itron amended its complaint to include claims based on

Consert’s failure to disclose the ongoing patent dispute with Forbes.

      Amidst the Itron litigation, Toshiba acquired Consert on 5 February 2013 as a

wholly owned subsidiary. Following the Consert–Toshiba merger, Consert engaged

Kilpatrick Townsend & Stockton LLP (Kilpatrick) to represent it in the Itron

litigation. Itron sought to depose Forbes regarding the Consert–Toshiba merger, the

220 action, and primarily the patent dispute with Consert.1 By mid-February 2013,



      1   Forbes produced requested documents during the Itron litigation while represented

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Forbes and Consert settled the 220 action, and by May 2013, Forbes and Consert

resolved the patent dispute, leaving only the Itron litigation unresolved.

      In October 2013, counsel from Winston & Strawn, LLP, who represented

Forbes at the time, communicated with Joe Bush of Kilpatrick (Bush),2 counsel to

Consert, about Forbes’s deposition.      Bush disclosed to Forbes’s counsel that, in

addition to his primary representation of Consert, he also represented former

employees and shareholders of Consert in the Itron litigation. Bush later offered

limited representation to Forbes at Consert’s expense as long as Forbes agreed to the

proposed engagement terms. Forbes eventually agreed that Bush would represent

him in the Itron litigation regarding his role as a former Officer and Director of

Consert.

      On 23 January 2014, Forbes signed an engagement letter that outlined the

terms of Bush’s limited representation of Forbes (the engagement letter), which

began by stating, “As you are aware, this firm is outside litigation counsel to [Consert]

in connection with the [Itron litigation].” The engagement letter then explained that

the representation of Forbes would “be limited to legal services associated with

discovery efforts (such as depositions, witness statements, factual development, and




by Winston & Strawn, LLP. Kilpatrick did not assist Forbes with document production.
      2   Plaintiff seeks to disqualify both Bush and Kilpatrick, his law firm, from
representing defendants. For simplicity, references hereinafter to “Bush” include both him
and his law firm as counsel.


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document analysis), [Forbes’s] potential testimony at trial, and specifically in

connection with [Forbes’s] former role as Chief Operating Officer of Consert.” Forbes

agreed that he would be “willing to permit Kilpatrick Townsend to disclose to Consert,

to any related entities, and to the employees of these entities, any of the information

it learns in its communications with [him] if, in [counsel’s] discretion, it becomes

necessary or appropriate to the defense of this lawsuit.” Forbes also agreed that he

would “not object to Kilpatrick Townsend continuing to represent Consert and its

related entities in this lawsuit” should a conflict of interest arise. Winston & Strawn

negotiated the terms of the limited representation on behalf of Forbes.

      Forbes’s counsel from Winston & Strawn initially prepared him for his

deposition and communicated with Forbes via teleconference two to three times for

approximately an hour on each occasion. In final preparation, Forbes met with Bush

once for approximately two to three hours the night before the deposition. Forbes’s

privately retained counsel from Winston & Strawn attended approximately an hour

of that meeting.

      During the deposition the next day, Itron’s counsel asked Forbes about his

relationship with Consert, the 220 action, the Consert–Toshiba merger, and

primarily the patent dispute. Twice during the deposition, Forbes requested a break

and spoke with his privately retained counsel from Winston & Strawn, even though

Bush was present at the deposition. When asked about the Consert–Toshiba merger,

Forbes stated, “I have not read the agreement of the merger between [Toshiba] and

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Consert. That might come as a surprise to you, but I have not read it.” The Itron

litigation settled on 1 February 2015.

        At some point on or before 5 February 2015, Forbes and counsel at Winston &

Strawn recognized Forbes’s potential claims at issue in the present action. As a

result, on 5 February 2015, Winston & Strawn sent a litigation hold letter to Bush,

based on his representation of Toshiba affiliates, informing him that Forbes and other

former Consert shareholders were considering filing the present action.                 On 9

November 2015, Forbes and other former Consert shareholders filed the present

action against Toshiba (as the parent company of Consert) and former officers,

directors, and shareholders of Consert, some of whom were jointly represented by

Bush in the Itron litigation.3 Defendants retained Bush to represent them against

plaintiffs. Plaintiffs allege that, through the Consert–Toshiba merger agreement,

defendants engaged in a “collusive scheme” to “benefit themselves and to defraud

Plaintiffs out of millions of dollars that Plaintiffs should have received for the shares

of stock they had purchased and held in Consert.”4 The merger agreement included

“earn out” provisions that obligated Toshiba to pay certain future proceeds directly to



        3   On 16 November 2016, the Chief Justice designated this case as a complex business
case.
        4Specifically, plaintiffs assert the following claims against defendants: (1) breach of
fiduciary duty, (2) common law fraud, (3) constructive fraud, (4) conspiracy to defraud, (5)
fraudulent inducement, (6) violation of the North Carolina Securities Act, (7) unlawful
taking, conversion, and unjust enrichment under common law, and (8) violation of the North
Carolina Unfair and Deceptive Trade Practices Act.


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a “Shareholders Fund” for distribution to Consert stockholders. Two post-merger

events, including resolution of the Itron litigation, would fund this account.

Plaintiffs, however, contend that the earn out provisions were “illusory and a sham”

because defendants knew at the time of the agreement that the triggering events

required to generate the proceeds at issue would never occur, thus precluding any

payment to the shareholders.

      Before the trial court, plaintiffs moved to disqualify Bush from the present

action based on his past representation of Forbes during the Itron litigation. In

support of the motion, Forbes filed a declaration stating his views of the prior

relationship and outlining his communications with Bush. Defendants responded

that the communications between Forbes and Bush were not confidential because the

engagement letter expressly limited the nature of Bush’s representation of Forbes

and specifically authorized Bush to disclose, in his discretion, “any of the information”

he learned in his communications with Forbes to “Consert,” “any related entities,”

and their “employees” during the Itron litigation.

      Recognizing that the facts here presented a “close case,” the trial court noted:

             In considering a motion to disqualify counsel, the Court
             considers the professional obligations imposed on
             attorneys by the North Carolina Rules of Professional
             Conduct . . . , as well as the goal of preventing the
             appearance      of   impropriety      in   the    profession.
             Disqualification of counsel is a serious matter . . . and the
             moving party has a high standard of proof to meet in order
             to prove that counsel should be disqualified. Nevertheless,
             a motion to disqualify counsel . . . . should succeed or fail

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             on the reasonableness of a client’s perception that
             confidences it once shared with its lawyer are potentially
             available to its adversary.

(Second ellipsis in original) (internal citations and quotation marks omitted).

      The trial court found that an attorney–client relationship existed between

Bush and Forbes in the past representation and that defendants’ position is

materially adverse to Forbes’s position in the present action, thus leaving unresolved

only whether the current matter is “substantially related to the matter in which Bush

and Kilpatrick previously represented Forbes.” In particular, quoting Plant Genetic

Systems, N.V. v. Ciba Seeds, 933 F. Supp. 514, 518 (M.D.N.C. 1996), the trial court

sought to answer whether “there is a reasonable probability that confidences were

disclosed in the prior representation which could be used against the former client in

the current litigation.”

      In its analysis the trial court resolved this issue by trying to discern what

actually occurred during the past representation as stated by Forbes and Bush. The

trial court relied on Forbes’s declaration, which included his characterizations of the

attorney–client relationship.   The trial court quoted portions of the declaration

detailing Forbes’s impressions of the nature of his communications with Bush and

conversely observed that Bush had not refuted Forbes’s “descriptions or

characterizations of the information he shared with Bush during the prior

representation.”



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       In reviewing the engagement letter, the trial court focused on the absence of

evidence showing that Bush actually disclosed any confidential information provided

by Forbes while the Itron litigation was ongoing. Moreover, by the terms of the

engagement letter, Forbes’s permission to disclose ended with the Itron litigation,

thereby limiting future disclosure by Bush. Absent evidence of actual disclosure, the

trial court found the engagement letter had little bearing on its analysis. The trial

court gave substantial weight to Forbes’s “perception” that the prior disclosures could

be used to his disadvantage, which the trial court found was not “unreasonable.”

Ultimately, the trial court determined that “the significant areas of overlap between

the issues in the two representations strongly suggest that the two matters are

‘substantially related.’ ”

       Notably, the trial court determined, “Even if the matters are not substantially

related within the strict meaning of Rule 1.9(a), however, the Court would

nonetheless conclude, in its discretion, that Bush and Kilpatrick should be

disqualified in order to avoid the appearance of impropriety.” As a result, the trial

court disqualified Bush because his “continued representation of Defendants in this

matter creates an appearance of impropriety that the Court cannot allow.”

Defendants appealed.

       “Decisions regarding whether to disqualify counsel are within the discretion of

the trial judge,” Travco Hotels, Inc. v. Piedmont Nat. Gas Co., 332 N.C. 288, 295, 420

S.E.2d 426, 430 (1992), but a trial court’s exercise of discretion is subject to reversal

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when the court orders disqualification based on a misunderstanding of the law, see

In re Estate of Skinner, ___ N.C. ___, ___, 804 S.E.2d 449, 457 (2017); see also Cooter

& Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S. Ct. 2447, 2461, 110 L. Ed. 2d 359,

382 (1990) (noting that the “[trial] court would necessarily abuse its discretion [in

deciding a Rule 11 motion] if it based its ruling on an erroneous view of the law”).

The movant seeking to disqualify his former counsel must meet a particularly high

burden of proof. See Gov’t of India v. Cook Indus., 569 F.2d 737, 739 (2d Cir. 1978)

(“[T]here is a particularly trenchant reason for requiring a high standard of proof on

the part of one who seeks to disqualify his former counsel . . . .”).

      Rule 1.9(a), governing the disqualification of counsel for a conflict of interest

relating to a former client, balances the prevented use of confidential information

against a former client with a current client’s right to choose his counsel freely. See,

e.g., N.C. St. B. Ethics Op. RPC 48 (Oct. 28, 1988), reprinted in North Carolina State

Bar Lawyer’s Handbook 2016, at 217 (2016) (recognizing, inter alia, “the right of

clients to counsel of their choice”).     The rule prevents an attorney from using

confidential material information received from a former client against that client in

current litigation.   See N.C. St. B. Rev. R. Prof’l Conduct r. 1.9 cmt. 1 (“After

termination of a client-lawyer relationship, a lawyer has certain continuing duties




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with respect to confidentiality and conflicts of interest and thus may not represent

another client except in conformity with this Rule.”).5

       Rule 1.9(a) provides:

              A lawyer who has formerly represented a client in a matter
              shall not thereafter represent another person in the same
              or a substantially related matter in which that person’s
              interests are materially adverse to the interests of the
              former client unless the former client gives informed
              consent, confirmed in writing.

N.C. St. B. Rev. R. Prof’l Conduct r. 1.9(a). Under Rule 1.9(a), a party seeking to

disqualify opposing counsel must establish that (1) an attorney–client relationship

existed between the former client and the opposing counsel in a matter such that

confidential information would normally have been shared; (2) the present action

involves a matter that is the same as or substantially related to the subject of the

former client’s representation, making the confidential information previously shared

material to the present action; and (3) the interests of the opposing counsel’s current

client are materially adverse to those of the former client.

       In applying Rule 1.9(a), the trial court considers the circumstances

surrounding each representation to objectively assess what would “normally” have

occurred within the scope of that representation.6 See id. r. 1.9 cmt. 3 (“A conclusion


       5See Nix v. Whiteside, 475 U.S. 157, 168-70, 106 S. Ct. 988, 994-96, 89 L. Ed. 2d 123,
135-37 (1986) (relying on the guidance offered in the commentary of the Rules of Professional
Conduct to interpret the Rules).
       6   See Normal, Black’s Law Dictionary (10th ed. 2014) (“According to a regular pattern;
. . . In this sense, its common antonyms are unusual and extraordinary. . . . According to an

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about the possession of such information may be based on the nature of the services

the lawyer provided the former client and information that would in ordinary practice

be learned by a lawyer providing such services.”). The test is whether, objectively

speaking, “a substantial risk” exists “that the lawyer has information to use in the

subsequent matter.” Id.; see id. r. 1.9 cmt. 2 (“The underlying question is whether

the lawyer was so involved in the matter that the subsequent representation can be

justly regarded as a changing of sides in the matter in question.”). The test does not

rely on the subjective assessment provided by the former client or the attorney. See

Restatement (Third) of The Law Governing Lawyers § 132A cmt. d(iii) (Am. Law Inst.

2017) (“[It] would be self-defeating if, in order to obtain its protection, the former

client were required to reveal in a public proceeding the particular communication or

other confidential information that could be used in the subsequent representation.”).

      Here it is undisputed that the third prong of the test under Rule 1.9(a) is

satisfied: the interests of Forbes and defendants in the present action are “materially

adverse.” For the two remaining prongs, the trial court must consider the scope of

the past representation to determine whether the former client would normally have

shared confidential information in the course of that representation and, if so,

whether that information is material to the present action. See N.C. St. B. Rev. R.



established rule or norm . . . .”); Objective, Black’s Law Dictionary (10th ed. 2014) (“Of,
relating to, or based on externally verifiable phenomena, as opposed to an individual’s
perceptions, feelings, or intentions . . . .”).


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Prof’l Conduct r. 1.9 cmt. 2 (“The scope of a ‘matter’ for purposes of this Rule depends

on the facts of a particular situation or transaction. The lawyer’s involvement in a

matter can also be a question of degree.”).

      The first prong of Rule 1.9(a) explores the existence and scope of an attorney–

client relationship between the attorney and the former client. “[A]n attorney-client

relationship is formed when a client communicates with an attorney in confidence

seeking legal advice regarding a specific claim and with an intent to form an attorney-

client relationship.” Raymond v. N.C. Police Benevolent Ass’n, 365 N.C. 94, 98, 721

S.E.2d 923, 926 (2011) (emphasis added) (citation omitted). The scope of such a

relationship, however, is a matter of contract, and a lawyer may reasonably limit the

scope and expectations of the representation “by agreement with the client or by the

terms under which the lawyer’s services are made available to the client.” N.C. St.

B. Rev. R. Prof’l Conduct r. 1.2 cmt. 6.

      The commentary to Rule 1.9(a) anticipates the use of engagement letters that

outline both the scope of representation and limitations on confidentiality at the time

the former client engaged counsel.         See id. r. 1.9 cmt. 2 (describing a lawyer’s

involvement in a “matter” as dependent “on the facts of a particular situation or

transaction” and the “degree” of engagement).               For example, a common

representation agreement could provide for the sharing of confidential information

among the co-parties represented by the same attorney but keep the information

confidential as to third-parties. Likewise, a former client’s concurrent representation

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by another attorney also informs as to the degree of the contested counsel’s

involvement and the confidences normally shared by a client in that situation. Thus,

under the rule, the emphasis is not on the traditional notions of the formation of an

attorney–client relationship, but on the scope of that relationship, when ascertaining

the reasonable expectation of confidentiality under the circumstances. See Allegaert

v. Perot, 565 F.2d 246, 250 (2d Cir. 1977) (Disqualification is not warranted unless

“the attorney was in a position where he could have received information which his

former client might reasonably have assumed the attorney would withhold from his

present client.”).

       Here the trial court erred by trying to determine whether Forbes actually

shared confidential information with Bush that Bush did not share with the other

parties to the common representation agreement. Instead, the trial court should

apply the objective test of whether a client in Forbes’s position would normally have

shared confidential information given the terms of the engagement letter and the

type of disclosure that usually occurs within that common representation

arrangement. Further, the trial court failed to consider the normal implications of

simultaneous and ongoing representation of Forbes by other counsel. On remand,

the trial court should objectively consider what confidential factual information

“would normally have been obtained” within the scope of the past representation.

N.C. St. B. Rev. R. Prof’l Conduct r. 1.9 cmt. 3.

       If the trial court determines that confidential information would normally have

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been shared within the scope of the past representation, it must then consider

whether that information is material to the present action by deciding if the two

matters are “substantially related.” A former client must objectively demonstrate “a

substantial risk that [confidential] information as would normally have been obtained

in the prior representation would materially advance the client’s position in the

subsequent matter.” Id. Through an objective, fact-intensive inquiry, the trial court

is best suited to determine whether such a substantial risk exists. See id. (considering

“the nature of the services the lawyer provided the former client and information that

would in ordinary practice be learned by a lawyer providing such services”); see also

Restatement (Third) of The Law Governing Lawyers § 132A cmt. d(iii) (Am. Law Inst.

2017) (“The substantial-relationship test . . . focus[es] upon the general features of the

matters involved and inferences as to the likelihood that confidences were imparted

by the former client that could be used to adverse effect in the subsequent

representation.” (emphasis added)).

      In assessing whether two matters are “substantially related,” the trial court

should consider, inter alia, the following illuminative factors: (1) the initial

engagement letter, including the scope of the representation and any limitations on

confidentiality; (2) the factual background leading to the past representation,

including common representation of others and any concurrent representation of the

former client; (3) the amount of time spent with the attorney; (4) the subject matter

of the two representations; and (5) all of the facts and circumstances of the current

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litigation, particularly as compared with those of the past representation. A former

client’s subjective perception or conclusory allegations that he shared confidential

information during the past representation should not be considered. See, e.g., Silver

Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 518 F.2d 751, 756-57 (2d Cir. 1975).

      Here the trial court erred by concluding that the matters appeared to be

“substantially related” based on Forbes’s conclusory belief that he had shared

confidential information with Bush “directly related to the claims . . . against

Defendants in this case.”          Thus, the trial court improperly determined

disqualification in reliance on the former client’s subjective judgment, which Rule

1.9(a) prohibits, rather than objectively comparing the facts and circumstances of

both representations.

      In its final rationale, the trial court mistakenly applied the now replaced

“appearance of impropriety” test as a consideration in favor of disqualification.

Unlike its predecessor, the Model Code of Professional Responsibility, the Rules of

Professional Conduct do not recognize “appearance of impropriety” as a basis for

disqualification, having deleted any reference to this standard in the 2002 revisions.7


      7  The Model Rules of Professional Conduct, of which Rule 1.9 is a part, replaced the
ABA Code of Professional Responsibility, which dated back to canons first promulgated in
1908. See Monroe H. Freedman, The Kutak Model Rules v. the American Lawyer’s Code of
Conduct, 26 Vill. L. Rev. 1165, 1165 (1981). Under the ABA Code, parties generally moved
for disqualification under Canon 4, “A Lawyer Should Preserve the Confidences and Secrets
of a Client,” and Canon 9, “A Lawyer Should Avoid Even the Appearance of Professional
Impropriety.” Model Code of Prof’l Responsibility Canons 4, 9 (Am. Bar Ass’n 1980). By 1986
North Carolina had adopted the Model Rules of Professional Conduct as its governing

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The tendency of the old test to lean towards a subjective, rather than objective,

analysis rendered it “no longer helpful.”8 As a result, the “appearance of impropriety”

test is no longer an appropriate legal standard for determining whether to disqualify

counsel.

       In sum, the trial court applied the incorrect standard under Rule 1.9(a) in

disqualifying defendants’ counsel. In making its determination upon remand, the

trial court must objectively assess the facts surrounding the motion to disqualify

counsel without relying on the former client’s subjective perception of his prior

representation.     The trial court should avoid the outmoded “appearance of

impropriety” test. We reverse the trial court’s decision and remand this case to that

court for application of the correct legal test.


       REVERSED AND REMANDED.


       Justice ERVIN did not participate in the consideration or decision of this case.




standard.
       8 See A Legislative History 242 (Art Garwin ed., 2013) (noting that the Ethics 2000
Commission Reporter’s Explanation of Proposed Changes included the statement that
comment 5, referencing the appearance of impropriety standard, was “deleted as no longer
helpful to the analysis of questions arising under this Rule”).


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