NOTE: This builds on a post published earlier. It is posted here as the electronic version of today’s AJC column.
Silk-stocking lawyers tend to cringe when they see their firm’s name in the headlines. It’s one thing if a high-profile client makes the news, but when the firm itself becomes the story, it’s seldom good.
It wasn’t for Atlanta-based King & Spalding, which made national headlines this week. By putting itself in a predicament from which it had no face-saving escape, the firm damaged its own reputation and allowed critics to question its adherence to one of the core values of its profession. Not a good week.
The problem began earlier this month when King & Spalding partner Paul Clement, based in Washington, D.C., agreed to represent House Speaker John Boehner and his colleagues in a case involving the Defense of Marriage Act.
That law, passed in 1996, forbids the federal government from recognizing any marriage other than that between a man and a woman. So while individual states may recognize gay partners as married, they are not married in the eyes of the federal government, a fact that has consequences for everything from taxation to Social Security.
DOMA has always been constitutionally rickety. Defining marriage is a state function, not a federal function, and the Constitution requires that contracts created in one state be honored in all other states. Because DOMA treats gay people differently than heterosexuals, it also violates the Constitution’s guarantee of equal protection.
For all those reasons, the Obama administration recently decided it could no longer defend the law from legal challenges. (The law is still being enforced and will remain in effect unless it is overturned.) So Boehner and his House colleagues made the perfectly appropriate decision to step in and hire private attorneys — using House funds — to defend the law.
Paul Clement, a King & Spalding partner and former solicitor general for the Bush administration, agreed to take the case. Within a week, however, King & Spalding chairman Robert Hays Jr. made the surprise announcement that the firm was withdrawing, explaining that “the process used for vetting this engagement (had been) inadequate.”
Clement quickly resigned and joined another firm, where he will continue to handle the case. He made the decision, he said in a letter, “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.”
Clement was right, and Hays and others at King & Spalding know he was right. In fact, King & Spalding attorneys have volunteered on a pro bono basis to represent suspects at Guantanamo out of respect for that very same concept: Even unpopular causes and clients deserve representation.
So what caused King & Spalding to abandon the DOMA case, lose a highly respected partner and call into question its commitment to an important ethical principle?
Pick your answer. Gay-rights activists had launched a national campaign to pressure King & Spalding to withdraw. Attorneys within the firm who believe in gay rights were angered by the decision to take the case, particularly when it was learned that a contract signed by Clement would bar everyone at the firm from taking a public position in support of gay marriage. Corporate clients committed to diversity — clients representing a large portion of the firm’s reported $700 million in annual revenue — may also have expressed displeasure.
Only Hays and his partners know how much weight each of those factors carried. But in the end, they decided that the interests of the firm took precedence over the interests of the client they had agreed to represent, and withdrew.
Some gay-rights proponents have seized upon that withdrawal as a great success, and viewed from one narrow perspective, it was. Unfortunately, it was a setback for the larger cause of equal justice.
Courts function as a relatively unbiased forum for causes that may not be particularly popular. In fact, the gay rights movement owes much of its progress to the willingness of the judicial system to lend an ear to unpopular arguments that the political system rejects.
Even those who believe that DOMA is bad law and discriminatory social policy — and I’m certainly one of them — should balk at using public pressure to deny any cause the counsel of their choosing.
– Jay Bookman