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.<\/p>\n
In constitutional law, the word \u201crepugnant\u201d represents a binary proposition\u2014statutes 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).<\/p>\n
In legal ethics, however, \u201crepugnant\u201d connotes \u201cdisgust-based morality.\u201d 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.<\/p>\n
When the law imports a standard of repugnance to the representation of human beings, \u201crepugnant clients\u201d 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.<\/p>\n
The word \u201crepugnant\u201d appears twice in the black letter of the Model Rules of Professional Conduct. In Rule 1.16(b)(4), a lawyer\u2019s repugnance for a client\u2019s proposed conduct will justify the lawyer\u2019s withdrawal from representing the client. In Rule 6.2(c), the lawyer\u2019s repugnance for the client or the client\u2019s cause will justify the lawyer\u2019s 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 \u201crepugnant\u201d does not promote ethical professional conduct but furthers inequality.<\/p>\n
This Article demonstrates how the use of the word \u201crepugnant\u201d in the Model Rules represents a diversion from the word\u2019s other legal uses and risks inconsistent and emotionally driven application of the Rules. In particular, by using the word \u201crepugnant\u201d to describe the client or the client\u2019s \u201ccause,\u201d Rule 6.2(c) threatens to undermine the bedrock principle that the accused\u2014popular or unpopular\u2014deserve 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\u2019s views. Worst of all, it invites the possibility of an objectively unrepresentable client.<\/p>\n
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 \u201crepugnant\u201d should be excised from the ABA\u2019s Model Rules of Professional Conduct.<\/p>\n