Repugnance and Fundamental Disagreement

Repugnance and Fundamental Disagreement

Rule 1.16(b)(4) permits a lawyer to withdraw when "the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement."¹ The sentence divides its work between lawyer and client. The lawyer supplies the standard, because the action must be one the lawyer considers repugnant or fundamentally disagrees with. The client supplies the trigger, because the client must insist on taking it. The clause also says nothing about material adverse effect on the client, which sets it apart from the harm-free ground discussed earlier.

Because the standard is the lawyer's own, the lawyer does not have to prove the client's objective unlawful, or show that other lawyers would object to it. The text asks only what this lawyer considers repugnant. A lawful course can therefore qualify. The Florida rule, as one opinion describes it, treats a repugnant course as an alternative to a criminal or fraudulent one, not as a synonym for it.²

The client's side of the rule carries its own limit. A client who mentions an idea and drops it once the lawyer explains the drawbacks has insisted on nothing, and the lawyer's distaste at first hearing the idea does not supply the missing element. The ground attaches to a position the client holds after hearing the lawyer's advice. The word fundamental sets a second hurdle: an ordinary difference over how to proceed does not qualify, and the disagreement must reach the substance of what the client wants done.

Change one fact and the result reverses.

State wording varies, so the local rule controls. A Florida opinion describes Rule 4-1.16 as permitting withdrawal if the client "persists in a course of action that the lawyer reasonably believes is criminal or fraudulent or repugnant or imprudent." That description says persists where the Model Rule says insists, adds imprudent, and speaks of the lawyer's reasonable belief. The same opinion adds that Rule 4-1.16(e) obliges a lawyer to continue representation, notwithstanding good cause to end it, when a tribunal so orders.³ That limit applies to the permissive grounds generally, and the later section on tribunal permission develops it.

24-7 Group of Companies, Inc. v. Roberts shows how a federal court treats a lawyer's request to leave after the relationship breaks down. The excerpts available here speak of a deteriorated attorney-client relationship and do not name paragraph (b)(4), so they illustrate the court's response and not the doctrinal ground itself. In one order the court granted 24-7's request for an extension and gave it until May 9, 2014 to retain replacement counsel.⁴ At a later hearing the court noted that Mr. Kraft and 24-7 had had at least one opportunity, if not two, to rebut the assertion that the Stone/24-7 attorney-client relationship had deteriorated. Kraft argued instead that a purported failure to serve the motion to withdraw on the company should void the court's action. The court disagreed. It reasoned that compelling an attorney to continue representing an apparently adverse client would be inappropriate where withdrawal would neither cause undue delay in the proceedings nor prejudice the client. It denied 24-7's demand to void the motion and extended the time to September 30, 2014 for 24-7 to secure representation.⁵ Two features carry over to any motion of this kind: the court pointed to the client's unused chances to rebut the lawyer's account, and it paired leave to withdraw with time for the client to find new counsel.

Withdrawal ends the work but not the confidentiality. The comment provides that after withdrawal the lawyer must refrain from disclosing the client's confidences except as Rule 1.6 otherwise provides, although the rules do not prevent the lawyer from giving notice of the fact of withdrawal.⁶ A lawyer who leaves over a disagreement may therefore announce that the representation has ended. What the client insisted on will ordinarily remain information relating to the representation, and the later section on noisy withdrawal takes up how much more a lawyer may say.

The ground also has a boundary with anti-discrimination law. Its trigger is action the client insists on taking, and a client's membership in a protected group is not an action. A commentary note observes that even if Rule 8.4(g) does not reach decisions on whether to accept or continue with a client, state or local anti-discrimination laws may preclude retention decisions deliberately excluding clients from a protected group.⁷ A lawyer who simply dislikes who a client is therefore has no repugnance ground. At most the lawyer has the harm-free route discussed earlier, and other law may still restrict that choice.