Alex Blaze

King & Spalding Was Right to Drop DOMA Defense

Filed By Alex Blaze | May 12, 2011 3:00 PM | comments

Filed in: Marriage Equality, Media, Politics
Tags: Dale Carpenter, DOMA, King & Spalding, law, marriage, media

When King & Spalding dropped DOMA defense, newspapers and columnists around the country ran breathless pieces scolding the firm (and HRC). dump-doma-thumb-200x265-17573.jpgTheir reasons were pretty much all the same:

  1. everyone deserves a legal defense, as if DOMA were a human being who may be executed if no one defends it,
  2. a lawyer has a duty to defend an unpopular client even if he doesn't agree with it - because if not him, who will? - even if "unpopular" here is defined as "supported by almost half of the US population"
  3. a body like the House has a right to defend a duly passed law, as if its in-house lawyers are chopped liver and only a $900/hr lawyer is competent enough to provide a legal defense good enough to satisfy the requirements of human rights and constitutional law,
  4. withdrawing from a case is terrible because it causes the client tumult, even though King & Spalding pulled out mere days after it agreed to the case and before it even started to work on the case, and
  5. HRC bullied the huge law firm into dropping the case, even though there's no proof that King & Spalding dropped the case because they were worried about their CEI 100 rating.

That last one is particularly important. The implication has been that it's bad to drop a client, yes, but it's really, really bad to drop a client because some gays told you to. Now, perhaps King & Spalding dropped the case because they thought it through, because they were persuaded by HRC's argument, or because of this:

Updated after the jump - turns out Paul Clement didn't follow firm policy when signing the contract to defend DOMA.

Withdrawals are commonplace. Lawyers are not doctors. Lawyers are permitted to withdraw for many reasons, including not getting paid, a client's misrepresentation of facts or taking action contrary to a lawyer's advice, a client's failure to communicate with a lawyer, and because the client wants a new lawyer. Courts usually do not require that the withdrawing lawyer provide a reason. Withdrawals are ethically proper and sanctioned by the court if the attorney follows court guidelines. No one has suggested that King & Spalding violated any rules.

Commentators have, however, raised serious legal concerns with a "gag rule" in the contract that the House of Representatives imposed on the firm that would have infringed the free speech rights of all the firm's employees. Professor Ari Ezra Waldman wrote in the blog towleroad.com that "[t]he agreement ... would have silenced everyone at [the firm], preventing anyone from voicing any opposition to," the law. Moreover, the gag rule "would also have been illegal in at least some of the states where [the firm] has set up shop," including California and New York, which has a law forbidding an employer's restrictions on "an individual's political activities outside of working hours."

While the reasons for withdrawal are irrelevant, it could well be that Clement signed the contract without informing the firm's management of these onerous terms, and the firm's silence on their reasons is designed to protect him.

Or as Dale Carpenter put it:

No serious case can be made that an institution as powerful as Congress has a right to the services of the biggest law firms and the most credentialed lawyers. The Defense of Marriage Act is not unpopular, and while Congress may be indebted, it is not indigent. A thornier question arises when a firm withdraws from a representation, though in this case the quick withdrawal evidently caused no harm to the client. More troubling is the possibility that a firm might quit because of outside economic pressure rather than principle, though it is unclear whether such pressure played a role in this case.

Of course, all the people caterwauling over King & Spalding dropping the DOMA defense won't make a peep about the next person who gets executed who didn't have the benefit of a $900/hr lawyer. Remember, since the House has lawyers who would have defended DOMA anyway, that's the standard implied by the LA Times, et al.: if someone can't have the most expensive lawyer in the country for a civil defense, then their basic legal rights have been violated. It's a standard they just made up and will soon forget.

In the mean time, it's also important to remember that no one's rights will be violated if DOMA just ended today. On the contrary, DOMA is the policy that's violating people's rights, not some law firm dropping a case that was immediately picked up by another law firm.

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Update: Reader Matthew emailed a link to this article. Turns out Paul Clement had a "misunderstanding" with King & Spalding on this case:

The statement by J. Sedwick "Wick" Sollers comes in a story today from The Daily Report, an Atlanta-based affiliate of The National Law Journal. The newspaper reports other new details about King & Spalding's reversal, including that the firm's client-vetting committee did not examine the House's contract until after then-partner Paul Clement signed it.

Sollers' statement reads in full: "Although our chairman Robert Hays has issued a short statement saying he assumed ultimate responsibility for any mistakes that were made, I want to make sure the record is clear that I was the member of firm management in primary contact with Paul Clement regarding this matter. As I have reflected on this, despite the fact that our standard client/matter review process was not followed, it was reasonable for him to believe that the firm would accept the matter. This was an unfortunate misunderstanding with a friend whom I personally recruited to the firm and strongly supported. I am deeply disappointed by Paul's departure and regret the breakdown in communications."[...]

Citing unnamed sources, The Daily Report reports that there was adamant opposition to the DOMA litigation from within the firm. "King & Spalding is a corporate law firm -- not a constitutional firm. This is not the kind of case the firm generally takes," one source said.

I doubt Elena Kagan, Eric Holder, the LA Times, the NY Times, and the Atlanta Journal-Constitution will all be coming out with updated positions on this matter. Andrew Sullivan, who also criticized the firm for dropping the case and HRC for asking them to, on the other hand, might.


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Kathy Padilla | May 12, 2011 3:07 PM

I think that #2 is usually phrased that unpopular clients deserve representation.

thanks. i also put a comma right in front of an n-dash. i changed it.

They're all bogus reasons meant to prop up discrimination. Period.