King & Spalding Withdraws From DOMA Defense. Thuggery? No, Just A Business Decision

A major law firm has withdrawn from defending DOMA in Court, and a public controversy has erupted.

Doug Mataconis · · 20 comments

Several weeks ago, it appeared that Congress was in the process of retaining the services of former Solicitor General Paul Clement, a partner in the international law firm King & Spalding, to take over the defense of Defense Of Marriage Act in the wake of the Obama Administration’s decision not to defend the case in Court any longer. Yesterday, in the wake of complaints from gay rights groups and some of its major clients, King & Spalding announced it wished to withdraw from the case and Clement left the firm so that he could handle the case at another firm, sending the DOMA defense into turmoil and causing no small degree of controversy and debate

he House of Representatives’ courtroom defense of the Defense of Marriage Act suffered a serious jolt Monday after the law firm the House hired to argue the law’s constitutionality in up to a dozen pending court challenges abruptly withdrew — and the former solicitor general heading up the defense resigned from the firm to stay on the case. Just a week ago, House officials announced they had signed up Atlanta-based King & Spalding and prominent constitutional lawyer Paul Clement, a former solicitor general under President George W. Bush, to defend the constitutionality of the 1996 law barring federal recognition of same-sex marriage. The defense of the law fell to the House after President Barack Obama instructed the Justice Department to abandon defense of a key portion of the law because he and Attorney General Eric Holder concluded it was unconstitutional. The House’s appointment of outside counsel was made — and a contract for up to $500,000 issued — over the objection of House Democratic leaders, who called the effort a waste of taxpayer money. However, late last week, King & Spalding came under pressure from gay rights activists decrying the firm’s decision to back a law some view as unfair discrimination. On Monday morning, King & Spalding chairman Robert Hays Jr. announced that the firm was backing out. “In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate,” Hays wrote. “Ultimately, I am responsible for any mistakes that occurred and apologize for the challenges this may have created.” Minutes later, Clement announced — in a blistering letter — that he was quitting the firm and planning to see through the defense of DOMA. “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 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.” “Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law,” Clement said. “If there were problems with the firm’s vetting process, we should fix the vetting process, not drop the representation.” Clement said he planned to keep up the DOMA defense and was joining Bancroft PLLC, a small Washington firm that is home to one of Clement’s former colleagues in the Bush Justice Department, Viet Dinh.

There’s been much discussion and debate over King & Spalding’s actions and the apparent public pressure campaign over the past 24 hours or so and, in the process, some interesting details have come out. For one thing, the contract that Clement apparently agreed to includes a clause that many have called a “gag order”:

The agreement between the firm and the government contains a provision that prohibits all King and Spalding attorneys and non-attorney employees from any advocacy to “alter or amend” DOMA. Here’s the exact language: 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.

Essentially this means that everyone who works for King & Spalding, a firm with 800 offices and offices in eight countries, would be prohibited from taking any position on the Defense of Marriage Act, lobbying their Member or Congress if they live in the United States, or writing a letter to the editor, blog post, or Twitter message on the subject that disagreed with the position that the firm was taking in the case on behalf of Congress. Quite honestly, I can’t say I’ve ever seen a provision like this in a Retainer Agreement in all my years of practice, and as Columbia University Law Professor Katherine Franke notes, there’s a serious question as to whether or not that provision is even legal under existing law.

Additionally, King & Spalding quickly found itself the subject of a public campaign by the Human Rights Campaign and other groups that favor same-sex marriage, and, more importantly, facing complaints from some of its most important clients:

Sources with knowledge of the backlash confirm that one of King & Spalding’s top clients, Coca Cola, also based in Atlanta, directly intervened to press the firm to extricate itself from the case. A Coca Cola spokesman declined to comment on or off the record for this story, but pointed TPM to the company’s long public history of support for equality and diversity. DOMA defines marriage as between a man and a woman and holds that states may not be compelled to recognize same-sex marriages performed in other states. The Obama Administration recently decided it could no longer defend the constitutionality of the law, and placed the onus on Boehner, who quickly accepted it. Other King & Spalding clients likewise conveyed to the firm that its decision to take the DOMA case could cause them problems, both internally and with customers, according to sources who spoke with TPM. It also faced its own internal backlash.

The reaction to this decision has been, in some cases predictable and in others surprising. In the predictable column are those bloggers and pundits on the right who cite this as an example of bullying by the gay rights movement. In the somewhat surprising column is Andrew Sullivan, a full-throated opponent who n0netheless objects to the pressure that was put on King & Spalding for taking the case:

This is an offensive attack on liberal democracy. There is no “appropriate” or “inappropriate” principle in defending even the most unpopular laws or vile individuals. It is precisely unpopular or despised laws and individuals that deserve legal defense, unfettered by political constraints. To put pressure on lawyers defending clients or laws because lobby groups don’t like them is deeply illiberal. It remains disgusting, for example, that rightwing groups targeted lawyers defending terror suspects and Gitmo prisoners. When the far right did this, it was despicable. Now that the left is doing it, it remains just as despicable.

The Volokh Conspiracy’s Jonathan Adler essentially agrees with Sullivan:

When some conservatives attacked private law firms and threatened retaliation for defending accused terrorists, the bar responded with outrage — and rightfully so. (My own posts on the subject can be found here and here.) At the time, we heard all the same arguments we are hearing now from HRC and its defenders — the right to legal representation does not entail the right to representation from any particular lawyer; attorneys should be held accountable for who they choose to represent; attorneys should be punished for defending the wrong side; and so on. Similar arguments have been made throughout history in efforts to discourage representation of unpopular clients and causes. (Indeed, I would not be at all surprised to learn that law firms and prominent were once discouraged from defending homosexuals who were persecuted for their sexuality.) Those arguments were wrong in the past, and they are wrong now. Paul Clement is to be commended for his courage and honor — whether or not he wins his case against DOMA. Even those who support same-sex marriage (as I do) should be thankful for attorneys like him who are willing to defend unpopular laws and positions, and disappointed at a large law firm’s willingness to cave so quickly. Indeed, King & Spalding has given existing and prospective clients reason to wonder whether it will stand firm if asked to defend unpopular or potentially objectionable positions on their behalf. A law firm’s reputation, once diminished, is not so easily restored.

Adler’s argument is persuasive. Indeed, I was among those who blasted Liz Cheney and others on the right who were seeking to demonize the attorneys who were providing legal representation to the men being held at Guantanamo Bay. The idea of demonizing an attorney because of the clients they represent, especially in a criminal context where there is a Constitutional right to representation, is offensive to the Rule Of Law. Indeed, one of America’s Founding Fathers, and our second President, made his name by defending, and obtaining the acquittal of, the British solders accused in the Boston Massacre, a decision that was understandably unpopular at the time.

There are, however, a few important differences between this situation and the Guantanmo captives representation.

First of all, as I noted above, there is a Constitutional right to representation in criminal cases, there is no similar Constitutional right to representation in a civil case such as the challenges to the Constitutionality of DOMA. Criticizing a lawyer for representing someone accused of a crime goes to the heart of our criminal justice system. Criticizing him or her for the civil litigation clients they choose to represent amounts, essentially, to criticizing a business decision. In the end, that appears to be what this was; a business decision on King & Spalding’s part that taking up the representation of DOMA was not worth the prospect of being the subject of public controversy and, potentially, losing a major client like Coca-Cola for whom being associated with public controversy is something to be avoided. No lawyer is under any obligation to represent any client and if K&S concluded that this representation was not in the firm’s interest, that’s their choice to make.

Second, the public protests that emerged in the wake of the announcement that King & Spalding would be taking the case were perfectly valid exercises of the right to freedom of speech. I don’t necessarily like the idea of the boycotts that advocacy groups on the left and the right have come up with in recent years, the most recent example being the Twitter-based campaign to get advertisers to pull ads from Wonkette over the Trig Palin post, but they have a Constitutional right to engage in those campaigns. This isn’t thuggery, it’s free speech.

Finally, DOMA will not go undefended. Clement has moved to a new firm and will continue to handle the case from there.

It would have been preferable, obviously, had King & Spalding simply declined to take the case from the beginning, but it appears that there was some kind of miscommunication in that regard between Clement and his partners, especially about the terms of the agreement that Clement entered into. However, no lawyer is required to undertake every case presented to him and I find it hard to condemn the firm for deciding to remove itself from a controversial situation.