Oh, this is so exactly why I left BIGLAW to start a small firm.
Megafirm King & Spalding could not have made a bigger mess of the DOMA representation if they had set out to do so. It started with a mighty coup — the House majority hiring King & Spalding's Paul Clement, a former solicitor general, to defend the constitutionality of DOMA after the Obama Administration declined to do so. Having high government officials tap one of your partners to litigate a high-stakes and high-profile case is great publicity, and a compliment to the firm, whatever you think of the merits of the case.
Clement was willing and able. But someone — or more probably, many someones — at King & Spalding had not thought the whole thing through. They faced loud and vigorous criticism by various gay rights groups, some of which contacted King & Spalding clients to complain. They undoubtedly pointed out that King & Spalding had marketed itself as gay-friendly and pro-diversity. Worse yet, law schools intimated that King & Spalding might suffer recruitment barriers because of their decision to take on the unpopular matter. As my classmate David French points out, King & Spalding had taken on very unpopular matters before and stuck it out. But not this time.
King & Spalding folded. They filed a remarkably coy and uninformative motion to withdraw. That was a risk — many federal judges I know would have hauled them in and ripped them a new one. Paul Clement promptly jumped ship with an awesome fuck-you letter:
"I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular clients is what lawyers do," Clement wrote to King & Spalding Chairman Robert Hays. "I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course for me but to complete it."
Now, it's possible that fear of bad publicity and angry clients and law schools wasn't the only issue that led King & Spalding to drop their shield and run. It also appears that House Republicans snuck in a bizarre gag rule that would have prevented King & Spalding, and its lawyers and non-lawyer employees, from advocacy that the House Republicans didn't like:
The contract, which was entered into with U.S. House of Representatives General Counsel Kerry Kircher on behalf of the House's Bipartisan Legal Advisory Group to defend DOMA in court, contains a provision that prohibits all King & Spalding attorneys and non-attorney employees from any advocacy to "alter or amend" DOMA.
The paragraph in question states that "partners and employees who do not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation … that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement."
Moreover, the preceding paragraph, 4(f), contains a similar prohibition on the partners and employees who are participating in the litigation. Paragraph 4(g), thus, clearly is intended to apply to those who do not participate in the litigation.
(Quick advice from a small-firm lawyer: if the client wants to insert "special language" into your standard retainer agreement, show them the door and look for the next case — they're not worth it.) The clause is intolerable (and very probably unenforceable, and very probably a major employment-law problem for King & Spalding), and it's appalling that the Republicans stuck it in there. Clients have no business trying to regulate the outside First Amendment activities of a law firm's employees. But even if that is the actual reason — not the pressure from angry gay rights groups — one must ask why they didn't see the clause before they signed the damned agreement.
King & Spalding's retreat is a public humiliation for them, and should be treated like one. Look: in general lawyers don't have to take cases they don't like. There are some people some people so vile that I wouldn't defend them. It's not because I think they don't deserve a defense, it's because I think that my feelings about them could render me less than effective. Since I'm no longer on the indigent defense panel, I haven't agreed to take on all and sundry. There are civil clients I wouldn't take, and some legal positions I'd never defend. If somebody tried to enact the PACE Amendment, I wouldn't defend it, in part because my feelings would prevent me from being a good advocate. And it's perfectly reasonable for lawyers and law firms to decline to take cases that would cripple them economically because they are repugnant to their normal clients. Lawyers who represent big banks need not take on clients who want to lobby for anti-big-bank regulations. Lawyers who defend doctors need not take on high-profile plaintiff-side malpractice cases. When it comes to taking on cases, a bar card is not a suicide pact. Further, a lawyer who lacks the spine to deal with bad press or angry clients is a bad choice for a hard case.
But once a lawyer does take on a cause, he shouldn't abandon it because it's unpopular with the public or the press or other clients. That's cowardly, emboldens people who want to prevent unpopular people and causes from finding lawyers, and conveys that it's OK for the justice system to be a beauty contest.
How do you reconcile the right to refuse a representation and the obligation to stick with one once you have it? We'll, you've got to have a competent, professional screening process. No sane or competent law firm would forget to run a conflict check. Why would a sane or competent law firm take on a politically incendiary case without considering the interpersonal, economic, and political conflicts that would result?
Clement comes out of this looking principled, and King & Spalding comes out looking awful. Moreover, the anti-DOMA advocacy groups that attacked King & Spalding — and the law schools that had made noises about sanctioning King & Spalding — come out looking thuggish and un-American. I have no problem with vigorous attacks on evil legal positions. I make them. But I do have a problem with attacks on advocates for taking on unpopular clients and causes and for making unpopular, if legally colorable, arguments. That's an attack on the structure of the justice system — an assertion that not only should a particular legal position fail, it ought not even be heard. It was loathsome when it came from conservative political opportunists attacking lawyers for representing Gitmo detainees, and it's loathsome when it comes from liberal political opportunists attacking lawyers for defending a federal statute. It's amazing how closely the arguments of the two loathsome groups coincide: the conservatives argued that the Gitmo detainees were not criminal defendants, and were not entitled to a legal defense, so that lawyers representing them were doing so gratuitously and ought to be judged; the liberals argue that civil litigants and are not automatically entitled to counsel, nor must statutes be defended, thus Clement ought to be judged. A pox on both their houses — they might be more comfortable in a system where a legal verdict is governed by political dogma, like China or Cuba. It's particularly galling for gay rights groups to take this stance. If they think that, in the long run, gay rights are advanced by normalizing the concept that unpopular causes ought not be defended, then they're drooling morons.
Are there positions so frivolous, or so vile, that it's fair to say they reflect badly on the attorneys who assert them? Certainly. We criticize or ridicule them all the time. But the notion that DOMA is constitutional isn't one of those cases. I think DOMA is a steaming pile of shit, that it reflects a loathsome spinelessness of the Clinton Administration, and that Obama's refusal to defend it (while raising complex and troublesome separation of powers issues) reflects an unexpected spine and a concern for what's right that I didn't expect to see from him. But get real: if the DOMA challenge gets to SCOTUS as it is presently constituted, then the most optimistic scenario for DOMA foes is a very close call. More probably, SCOTUS would find it constitutional. You may think they're wrong, but it's a very arguable position based on extant caselaw. If the DOMA foes win before SCOTUS — and I would bet they will not — it will be damned close.
In short,though I support King & Spalding's right not to take on the case in the first place, and would not have commented if they had turned it down, I think their conduct has been appalling. They could have stood up and said so: "We cannot accept this representation because it seeks to establish a legal point that we believe to be contrary to the interests of our other clients." But taking it on only to abandon it upon receiving a little public pressure is the worst possible course, and represents indefensible incompetence. Through its course of action, King & Spalding has broadcast the following message to its clients and potential clients: "Our right hand doesn't always know what our left hand is doing. We make important decisions without careful reflection of the relevant factors. We're committed to representing you, unless it becomes more unpopular than we expected, in which case we'll need to bow out. We're committed advocates, within the limits of our financial self-interest."
Who the hell would hire a law firm like that?
Fortunately for them, there is plenty of shame to go around — they can share it with the people who lobbied their clients and pressured them.
Last 5 posts by Ken White
- Shock, Dismay In Academia At Scorpion Acting Like Scorpion - June 28th, 2017
- Free Speech Triumphant Or Free Speech In Retreat? - June 21st, 2017
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- Free Speech, The Goose, And The Gander - June 17th, 2017
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