Repugnant Objectives
| Publication year | 2012 |
| Pages | 51 |
| Citation | Vol. 41 No. 12 Pg. 51 |
2012, December, Pg. 51. Repugnant Objectives
December 2012
Vol. 41, No. 12 [Page51]
Professional Conduct and Legal Ethics articles are sponsored by the CBA Ethics Committee. Articles published here do not necessarily reflect the legal interpretation of the Committee.
Coordinating Editor
Stephen G. Masciocchi, Denver, of Holland and Hart LLP-(303) 295-8000, smasciocchi@hollandhart.com
About the Author
Alec Rothrock, Englewood, is a shareholder in the law firm of Burns, Figa and Will, P.C., and a former Chair of the CBA Ethics Committee-(303) 796-2626, arothrock@bfw-law.com.
Lawyers sometimes come to learn or suspect dark secrets about their clients that would make achievement of their goals deplorable or even despicable in the eyes of almost everyone except the client. For example, in dissolution of marriage cases involving minor children, a client's real motive for trying to maximize parenting time may be to manipulate child support or to perpetuate a practice of sexual molestation. This article discusses a lawyer's ethical obligations when considering whether to undertake a representation that may involve what the lawyer considers to be repugnant objectives (as they are called in the Colorado Rules of Professional Conduct), to exclude such an objective from the scope of representation, or withdraw from the representation entirely.
Determining the objectives of a representation is uniquely and fundamentally the client's prerogative.(fn1) A lawyer who considers the client's objectives repugnant cannot simply substitute the client's objectives for those the lawyer finds more suitable. Lawyers are, after all, agents of the client.
This quandary can arise in a number of circumstances. It can arise when the lawyer first meets with a prospective client and considers whether to accept the representation. It can arise after the lawyer has accepted the representation, often (but not always) unforeseeably. It can arise in litigation matters and in transactional matters. It also can arise when a law firm associate is assigned to work on a matter. Sometimes, the client's objectives appear inoffensive to the lawyer at the outset, only to become repugnant as the lawyer gains familiarity with the client and his cause. At other times, the client's objectives change during the course of the representation.
In most instances, lawyers have no significant moral qualms about working on a particular matter or for a particular client. Lawyers are trained to be able to divorce themselves from their clients and their clients' views and actions-a characteristic of lawyers often misunderstood outside the profession. Lawyers understand that the representation of a client "does not constitute an endorsement of the client's political, economic, social or moral views or activities,"(fn2) and that "representing a client does not constitute approval of the client's views or activities."(fn3) However, lawyers are permitted-indeed encouraged-to refer to moral considerations when advising clients.(fn4) Especially in criminal defense representation, the lawyer's bedrock belief in the client's right to assert his or her rights almost always outweighs any reservation or even aversion on the part of the lawyer to the client's conduct.
In fact, many lawyers represent particular clients or categories of clients because they think it is morally just to do so. For example, American Civil Liberties Union lawyers, legal services lawyers, and public defenders often represent deeply unpopular clients because they believe they are pursuing justice. Similarly, most prosecutors believe that they are serving society by bringing criminals to justice. Additionally, personal injury lawyers often feel that they are bringing about justice in their practices, as do claimants' lawyers in workers' compensation cases.
There are, however, circumstances in which a prospective representation is highly offensive to the lawyer. One commentator asks:
Would you represent a death row inmate seeking a last-minute stay of execution, even if it were clear that he had slaughtered a whole family? Would you represent the government opposing that petition, thus hurrying the inmate towards death? What about representing one side or the other where the issue is shutting down an abortion clinic or whether a lesbian couple can adopt a child?(fn5)
Other examples in the criminal defense area are the lawyer in a murder case whose client instructs him not to offer resistance to the death penalty,(fn6) and the lawyer who strongly suspects that his client's agreement to plead guilty and cooperate with the prosecution is nothing more than an attempt to avoid responsibility for his own crimes by putting others in prison.(fn7) A hypothetical in a transactional matter is a wealthy client who seeks to retain a lawyer to help her obtain a broadcast license to broadcast material of a racist nature.(fn8) Repugnant objectives can arise in myriad settings.(fn9)
This article addresses a lawyer's moral obligations and prerogatives in these circumstances. It emphasizes cases involving child custody. The article begins with a discussion of the terminology used in the Colorado Rules of Professional Conduct (Colo. RPC or Rules). It then discusses a lawyer's duties and rights when considering a prospective representation, as well as after the lawyer has decided to accept a representation. The article then discusses the possibility of limiting the representation to exclude objectives the lawyer considers repugnant. The article concludes with a discussion of the lawyer's obligations when considering and then undertaking a withdrawal from a representation.
Terminology: Objectives, Means, and Repugnant
Colo. RPC 1.2 draws a distinction between the objectives of a representation and the means used to attain the objectives. The client chooses the objectives and the lawyer is responsible for-and traditionally in control of-the means. The client's choice of objectives is limited only by what the law and the lawyer's professional obligations permit.(fn10) Classic decisions reserved to the client, by which the lawyer must abide, are those regarding the settlement of a civil matter and entry of a plea in a criminal case.(fn11)
Rule 1.2(a) requires the lawyer to consult with the client about the means used to pursue the objectives. Clients "normally" defer to the lawyer's expertise in "technical, legal and tactical matters," and lawyers "usually" defer to the client regarding matters of cost and the effect of certain actions on third persons.(fn12) Some criminal appeals turn on whether a particular decision made before or during trial was one that involved an "inherently personal right" such that it must be made by the defendant, or a strategic or tactical decision that may be made by the lawyer.(fn13) As often stated in criminal cases, "Defense counsel stands as captain of the ship in ascertaining what evidence should be offered and what strategy should be employed in the defense of the case."(fn14)
A Comment to Colo. RPC 1.2(a) recognizes that the lawyer and the client may disagree about which means to use to attain the client's objectives.(fn15) Aside from consulting the client and external law, the paragraph offers little guidance beyond a reminder that the client can always discharge the lawyer, and the lawyer may have the option of withdrawal.(fn16) As a practical matter, when former clients complain in disciplinary proceedings that their lawyer refused to follow their instructions regarding strategic or procedural matters, the Office of Attorney Regulation Counsel gives the lawyer great leeway even if the lawyer's tactical decision was unsuccessful.
The Rules also recognize that clients sometimes choose objectives that are "repugnant," or seek to have their lawyers employ means that are "repugnant." The Rules use the term "actions" to refer generically to both objectives and means.(fn17) A Comment associated with the Rule that permits lawyers to limit the scope or objectives of a representation states that a lawyer may exclude actions the lawyer regards as repugnant.(fn18) The rule listing the grounds for permissive withdrawal states that a lawyer may withdraw, or seek withdrawal when the matter is before a tribunal, if the client insists on taking action that the lawyer considers repugnant.(fn19) Similarly, one exception to the rule that requires lawyers to accept court-appointed cases is when "the client or the cause is so repugnant to the lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the client."(fn20)
The term "repugnant" is not defined in the Rules. The dictionary gives synonyms such as offensive, repulsive, distasteful, or disgusting.(fn21) The test for determining repugnance is a subjective one. Each time the word "repugnant" appears in the Rules, it is viewed from the lawyer's personal vantage point.(fn22) Although the Rules do not refer to morality in association with the concept of repugnance, the literature on the subject assumes a moral basis to the lawyer's perception of the action as repugnant.
Repugnant actions may be unlawful or fraudulent. They may "have no substantial purpose other than to embarrass, delay, or burden a third person" and, if they involve methods of obtaining evidence, they may violate the legal rights of a third person.(fn23) In addition, a lawyer's acquiescence in repugnant actions may cause the lawyer to violate the Rules. In these instances, however, other specific Rules prohibit the lawyer from pursuing the actions.(fn24) Their repugnance to the lawyer is incidental to the lawyer's obligations under other Rules. Actions repugnant to the lawyer do not necessarily implicate...
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