Tuesday, April 26, 2011

DOMA Alone

One thing you rarely see is a law firm abandoning its representation of a particular client. I worked for a large law firm for nearly five years and can only think of one instance where it happened, when a client who was engaged in bankruptcy proceedings was hiding assets, a la the Denny Hecker case that we saw recently.

It's one thing to say you can't represent someone when you know they are engaging in criminal behavior, but quite another when a law firm abandons a law itself. That's what happened this week, as the law firm of King & Spaulding, which was retained by the House of Representatives to defend the Defense of Marriage Act, suddenly bailed on the case. Byron York reports:

Legal insiders knew there would be controversy when Paul Clement, the former solicitor general, signed on to defend the Defense of Marriage Act against constitutional challenge. But few could have predicted a controversy so intense that Clement's law firm, under fire from gay activists, would abruptly abandon the defense, forcing Clement to resign in protest. And yet that is what happened on Monday.
York explains the chronology:

The Act was passed in 1996 by overwhelming bipartisan majorities -- 342 to 67 in the House and 85 to 14 in the Senate -- and was signed into law by President Bill Clinton. Gay activists have long opposed it, and many hoped that President Obama and congressional Democrats would repeal it. That didn't happen.

But in February, Attorney General Eric Holder announced the president has now decided DOMA is unconstitutional. Therefore, even though it is the Justice Department's responsibility to defend the laws that Congress passes, and even though the Obama Justice Department defended DOMA in 2009 and 2010, Holder declared the Department would no longer defend the Act against various court challenges that have been brought by activist groups.

That's where Paul Clement came in. When House Speaker John Boehner decided the House would defend DOMA in court, the House retained the giant firm King & Spalding, with Clement handling the case. Firm management considered the likelihood that the representation would be controversial -- that was pretty much guaranteed -- but still signed off on Clement's participation.

That's when the pressure started. King & Spalding prides itself on its diversity programs; in recent years, it has been a national sponsor of the gay-rights Lambda Legal Defense and Education Fund and boasts that it "actively recruits LGBT law students." When word got out that King & Spalding was defending DOMA, there was talk of gay groups cutting all ties with the firm. Of discouraging top students from joining the firm. Of protests.

Clement's representation caused tension inside King & Spalding, and on Monday that tension spilled into public view. The firm publicly withdrew from the DOMA case and Clement immediately resigned.
There are two things that strike me as particularly odd about this case. First, whatever the merits of DOMA, it's not a problem if the Obama administration opposes the law. What is a problem is the way they've gone about dealing with their opposition. It would be far more preferable for the administration to publicly support a bill in Congress that repeals DOMA, rather than bailing on its defense of the law. There would be a political price to pay for it, but if you are sincere in your beliefs, then you should make the case.

Second, the idea that a law firm would pull the rug out from underneath one of its partners is astonishing. As noted above, the firm was getting pressed by gay groups. York details even more pressure in his report. Still, lawyers don't fold under such pressures. Or at least they didn't until now.

What does it say about the state of American law that it is easier to get an attorney, and the full support of his/her law firm, if you are a terror suspect, than it is if you are the leader of one half of the legislative branch of government seeking to defend an existing statute? To me, it says the law, and the practice of law, is getting so thoroughly politicized that even basic standards of legal practice are on shaky ground. No matter what you think about the relative merits of the Defense of Marriage Act, that ought to scare the hell out of you.


Bike Bubba said...

Amen. Samuel Rutherford, author of the famous "Lex Rex" doctrine of law, is spinning in his grave.

Brad Carlson said...
This comment has been removed by the author.
Night Writer said...

"There's a lot of ugly things in this world, son. I wish I could keep 'em all away from you. That's never possible."
- Atticus Finch

Scout: If you shouldn't be defending him, then why are you doing it?
Atticus Finch: For a number of reasons. The main one is that if I didn't, I couldn't hold my head up in town. I couldn't even tell you or Jem not to do somethin' again.

Brad Carlson said...

Now Byron York is reporting that a full page ad in the Atlanta-Journal Constitution, which was going to denounce King & Spaulding, has been pulled.

What happened to that ol' "dissention is the highest form of patriotism" thing?

Amanda? Rich? Help us out here.

Anonymous said...

You will get no defense from me. A year or two ago, I went on record here about being appaled that Conservatives - some of whom were elected or appointed officials - were threatening/pressuring lawyers who were defending clients at Gitmo. I called this an affront to liberal democracy. It was then, and it is now. What Gay Rights groups are doing here is a deeply offensive to our democratic values. This isn't a fashion show or American Idle, it is Common Law in practice and it needs to run its course. That means that the act of defending even the most unpopular laws or individuals is, perhaps, more important precisely because they are unpopular and/or despised. And by engaging in actions attempting to stop the debate before it even starts, these alleged civil rights groups lose their moral high-ground. The ends simply don't justify the means. I want DOMA to have the best defense possible. Pressuring lawyers or firms who are defending clients or laws because your interest group is opposed to them is disgusting, illogical and illiberal. When the right did this, it was despicable. Now that the left is doing it, it remains just as despicable.

That said, I think it should be noted that while I absolutely denounce the actions of the groups pressuring King & Spaulding, I gotta call a spade a spade and ask what the hell is wrong with the firm and its leadership that it would be so feckless and cave in to these jackasses. Grow a pair for God's sake. They jettisoned one of their own partners to acquiesce to the pathetic Human Rights Campaign? WTF? I know if I had deep pockets nd I needed legal defense, they'd now be off my list, short and long. I have to guess, too, that this will have some serious consequences long-term for King & Spaulding. One can only hope.


Mr. D said...


Good on ya. Thank you. I don't remember the specific case you're referring to in re Gitmo, but intellectual consistency is important and the current situation is both puzzling and deeply troubling.

Anonymous said...

Here is a link from Margaret Talbot that says what I wanted to. Just much better than I could. Spot On.

Gino said...

i'm with Rich, on all of it.
and i dont even have a strong opinion on DOMA.