Volume 35

Subjective Feeling or Objective Standard? The Misuse of the Word "Repugnant" in the Model Rules of Professional Conduct

by Vanessa A. Kubota

This Article is about one word. Properly used in American jurisprudence, it describes a statute or judicial decision that conflicts with the meaning and text of the U.S. Constitution. Improperly used, it describes an amorphous feeling that allows lawyers to renounce clients whose actions, cause, or person they dislike.

In constitutional law, the word “repugnant” represents a binary proposition—statutes or judicial decisions are either compatible with or repugnant to the U.S. Constitution. Subjectivity takes a back seat, and the word signifies a conflict between two objects, one (the repugnant object) that by its incongruity must be nullified by the other (the object with which it is inconsistent).

In legal ethics, however, “repugnant” connotes “disgust-based morality.” Something is repugnant when condemned as repulsive or immoral. A repugnant object, then, is an object with an imputed identity of repulsiveness. The person who feels repulsed is also the one who decides what is repulsive.

When the law imports a standard of repugnance to the representation of human beings, “repugnant clients” lose their identity, their humanity, and their standing under the law. This version of repugnance is often grounded in race, status, disability, sexual orientation, gender, religion, ethnicity, or nationality, thus facilitating systemic racism, antisemitism, transphobia, or any other form of discrimination. At other times, repugnance is touted as a justification for hate directed at the perceived hater, dehumanizing the enemy in whatever form that enemy takes for the one whose repugnance feels morally justified.

The word “repugnant” appears twice in the black letter of the Model Rules of Professional Conduct. In Rule 1.16(b)(4), a lawyer’s repugnance for a client’s proposed conduct will justify the lawyer’s withdrawal from representing the client. In Rule 6.2(c), the lawyer’s repugnance for the client or the client’s cause will justify the lawyer’s flight from an appointed representation. In neither instance is the word necessary to achieve the goal of the Rule. To the contrary, its use invites misapplication. If the standard for repugnance is subjective, it can become arbitrary and self-justifying. If objective, it can drain the lifeblood of the Sixth Amendment. The word “repugnant” does not promote ethical professional conduct but furthers inequality.

This Article demonstrates how the use of the word “repugnant” in the Model Rules represents a diversion from the word’s other legal uses and risks inconsistent and emotionally driven application of the Rules. In particular, by using the word “repugnant” to describe the client or the client’s “cause,” Rule 6.2(c) threatens to undermine the bedrock principle that the accused—popular or unpopular—deserve representation, enabling lawyers to elevate their personal preferences above their professional duty. The word indulges a refusal to bracket the emotionality of moral judgment, contradicting the teaching of Rule 1.2(b) that representing a client does not mean the lawyer endorses the client’s views. Worst of all, it invites the possibility of an objectively unrepresentable client.

Although lawyers should not be compelled to represent clients against their will, other provisions in the Model Rules allow lawyers to seek excusal from representation based on conflicts of interest or incapacity. Because it is inapt and superfluous, the word “repugnant” should be excised from the ABA’s Model Rules of Professional Conduct.

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