King & Spalding Drops DOMA Case, Paul Clement (Former Solicitor General) Leaves King & Spalding

Ben Smith (Politico) reports on King & Spalding’s decision (which was explained by the Chairman of the firm as based on the conclusion that “the process used for vetting this engagement was inadequate”), and Josh Gerstein (Politico) reports on Paul Clement’s. Clement’s letter is here; here’s the key argument:

My resignation is … prompted by the firm’s decision to withdraw as counsel for the Bipartisan Legal Advisory Group of the United States House of Representatives in defense of Section III of the Defense of Marriage Act. To be clear, I take this step not because of strongly held views about this statute. My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as Solicitor General.

Instead, 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 positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law. Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism….

As I searched for professional guidance on how to proceed, I found wisdom in the place you and I both would have expected to find it: from our former partner, Judge Griffin Bell [Attorney General under President Carter, and a Kennedy appointee to the Fifth Circuit -EV], in a 2002 commencement speech to his alma mater, Mercer Law School. “You are not required to take every matter that is presented to you, but having assumed a representation, it becomes your duty to finish the representation. Sometimes you will make a bad bargain, but as professionals, you are still obligated to carry out the representation.”

I think Clement’s decision is right and honorable, and King & Spalding’s decision strikes me as quite mistaken. (Disclosure: Clement and I know each other from when we clerking.) Thanks to Ed Whelan (Bench Memos at National Review Online) for the pointer.

UPDATE: Sorry, just saw that Orin posted on the subject before me; please post comments there.

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