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

• Author: Vanessa A. Kubota
• Position: Attorney admitted to the State Bars of Arizona and Washington
• Pages: 259-320

Subjective Feeling or Objective Standard? The

Misuse of the Word “Repugnant” in the Model

Rules of Professional Conduct

VANESSA A. KUBOTA*

Revulsion is not an argument, and some of yesterday’s repugnances are today

calmly accepted—though, one must add, not always for the better.

1

Leon R. Kass, The Wisdom of Repugnance, NEW REPUBLIC, June 1997, at 20. Kass claimed that

“[r]epugnance is the emotional expression of deep wisdom, beyond reason’s power fully to articulate it.” Id. I

initially titled this article “The Folly of Repugnance in The Model Rules” to parody the concept coined by

Kass. See Leon R. Kass, The Wisdom of Repugnance, in LEON R. KASS & JAMES Q. WILSON, THE ETHICS OF

HUMAN CLONING 3, 19 (1998). The doctrine has been widely criticized. Philosopher Martha Nussbaum charac-

terized it as “disgust-based morality” invoked to justify persecution of minorities and vulnerable people.

Martha C. Nussbaum, Danger to Human Dignity: The Revival of Disgust and Shame in the Law, CHRON.

HIGHER EDUC. (Aug. 6, 2004), https://www.chronicle.com/article/danger-to-human-dignity-the-revival-of-

disgust-and-shame-in-the-law/ [https://perma.cc/YZK6-RNN5] (“Fear of a dissident minority often

masquerades as moral disapproval.”).

ABSTRACT

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 nul-

lified by the other (the object with which it is inconsistent).

* Attorney admitted to the State Bars of Arizona and Washington. Judicial Law Clerk at the Arizona Court

of Appeals, Division 1. Sandra Day O’Connor College of Law – Arizona State University, J.D.; University of

California, Santa Barbara, B.A., Religious Studies. Homage to Kyabje Dodrupchen Rinpoche and Lama

Chodrak Gyatso, embodiments of pure equanimity. Immeasurable gratitude to my mentor, Professor Myles

Lynk, Senior Assistant Disciplinary Counsel, D.C. Office of Disciplinary Counsel, who guided me through this

process from start to finish. Special thanks also to Honorable Donn Kessler (Ret.) and Law Professors Art

Hinshaw, Dr. Michael Saks, and Karina Ordinez, who bestowed sublime suggestions both in substance and

form. Thanks also to Dr. Evan Berry, assistant Professor of environmental humanities at the Historical,

Philosophical and Religious Studies Department at Arizona State University, for his explanation of the concept

of abjection and its parallels to the issues presented in this article, as well as his guidance on biblical translation

commentaries. Gratitude to Andrea Gass for her exquisite feedback and wisdom. Finally, deepest thanks to the

gifted editors of the Georgetown Journal of Legal Ethics, particularly Molly Sprick and Benjamin Phillips, for

their outstanding editorial suggestions. © 2022, Vanessa A. Kubota.

1.

259

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 pro-

posed 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 misapplica-

tion. 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 incon-

sistent 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.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 262

THE CATEGORY OF THE REPUGNANT CLIENT. . . . . . . . . . . . . . . . . . 263

NO LITMUS TEST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267

260 THE GEORGETOWN JOURNAL OF LEGAL ETHICS [Vol. 35:259

I. THE GENERAL EVOLUTION OF THE RULES OF PROFESSIONAL

RESPONSIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 270

A. THE “REPUGNANCY PROVISIONS” IN THE MODEL RULES. 274

B. THE ORIGIN OF MODEL RULE 1.16 (B)(4) . . . . . . . . . . . . . . 276

C. THE INCLUSION OF “REPUGNANT” IN RULE 6.2(C) . . . . . . 279

D. THE LONGSTANDING TENSION BETWEEN PERSONAL

MORALS AND PROFESSIONAL RESPONSIBILITY. . . . . . . . 280

E. ADOPTION OR REJECTION OF RULES 1.16(B)(4) AND 6.2(C)

BY STATE BARS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 286

1. CALIFORNIA AND MODEL RULE 1.16(B)(4). . . . . . . . . . . . . . 287

2. NEW YORK AND MODEL RULE 1.16(B)(4) . . . . . . . . . . . . . . 289

3. DISTRICT OF COLUMBIA AND RULE 1.16(B)(4) . . . . . . . . . . . 290

4. OTHER STATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290

5. STATE ADOPTION OF THE LANGUAGE OF RULE 6.2(C). . . . . . . 291

II. DEFINING “REPUGNANT”: ETYMOLOGY, APPLICATION, AND

“MEANING AS USE”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 292

A. ETYMOLOGICAL ROOTS . . . . . . . . . . . . . . . . . . . . . . . . . . 293

B. POLYSEMY AND AMBIGUITY . . . . . . . . . . . . . . . . . . . . . . 293

C. THE WORD “REPUGNANT” IN CONSTITUTIONAL LAW . . . 294

D. REPUGNANCY IN BIBLICAL CONTEXTS . . . . . . . . . . . . . . 296

E. DIVISIVE, CONDEMNING RHETORIC IN THE

ELIZABETHAN PERIOD: REPUGNANT AS VILE . . . . . . . . . 299

F. CONTEXTUALIZING “REPUGNANT”. . . . . . . . . . . . . . . . . 299

III. HOW COURTS HAVE TREATED THE CONCEPT OF

REPUGNANCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301

IV. ANALYSIS: THE “REPUGNANT” CLIENT AS FLOATING

SIGNIFIER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304

A. REPUGNANCE AND DISGUST: A DESCRIPTIVE OR A

NORMATIVE CLAIM? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307

B. THE IMPOSSIBILITY OF A REASONABLENESS INQUIRY . . 311

1. SUBJECTIVE TEST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 311

2022] SUBJECTIVE FEELING OR OBJECTIVE STANDARD 261