Here’s my take on the Clement kerfuffle Orin and Eugene blog about below.
After the Obama Administration announced it would no longer defend the constitutionality of the Defense of Marriage Act (DOMA), Congress opted to defend the law on its own. The Bipartisan Legal Advisory Group retained the services of King & Spalding’s Paul Clement, a former Solicitor General who is widely considered to be among the best (if not the best) appellate advocate of his generation.
Clement’s decision to represent Congress and defend DOMA was controversial in some circles, and understandably so. Although DOMA was enacted with broad bipartisan majorities and signed into law by President Clinton, it prevents federal recognition of same-sex marriages, even when sanctioned by state law. For supporters of same-sex marriage, that’s a tough pill to swallow.
Angered over Clement’s decision, the Human Rights Campaign launched a campaign against King & Spalding, seeking to punish the firm because one of its partners dared represent a controversial client. According to HRC, the representation was “a shameful stain on the firm’s reputation.” In reality, what’s really shameful is HRC’s McCarthyite attack on Clement and King & Spalding — particularly given the nation’s sorry history of efforts to prevent effective legal representation of marginalized groups and unpopular causes.
The Los Angeles Times, which supports same-sex marriage, explained the folly of the HRC campaign in an editorial last week.
It’s perhaps understandable that leaders of an advocacy group like the Human Rights Campaign would be outraged at the idea of anyone defending a law that they so strongly believe is discriminatory. But the suggestion that it’s shameful for Clement or his firm to do so misunderstands the adversarial process. For one thing, with sharp-witted counsel on both sides making the strongest possible arguments, it is more likely that justice will be done. For another, a lawyer who defends an individual or a law, no matter how unpopular or distasteful, helps ensure that the outcome is viewed as fair. If DOMA is struck down, the fact that it was defended effectively will make the victory for its opponents more credible. . . .
In criticizing Clement’s law firm for agreeing to defend DOMA, the Human Rights Campaign contrasted that decision with the firm’s admirable record in promoting equality for gay and lesbian employees. But there is no contradiction — unless one believes that DOMA doesn’t deserve a defense. We hope Clement loses, but we don’t begrudge him the assignment. Even a lawyer of his skills will find it hard to defend a discriminatory law like DOMA.
In the end, the criticism was too much for King & Spalding, and the once-proud firm asked to withdraw its representation, citing a failure of the vetting process. Clement, to his credit, found this unacceptable, and has resigned from the firm. This is a major loss for the firm, which had been building an appellate practice around Clement, as is the firm’s apparent willingness to discard its integrity when placed under fire. King & Spalding is willing to defend Guantanamo detainees, free of charge (and rightfully so), but it apparently lacks the courage to defend controversial legislation and honor commitments to clients once retained.
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.
UPDATE: Some suggest that King & Spalding may have withdrawn its representation due to objections over certain particulars in the representation agreement that would have limited the outside activities of firm attorneys. If this, and not the HRC campaign, was the concern, it seems to me that King & Spalding had plenty of options short of terminating the representation. And even if it saw no other option, say because the client refused to budge, it could have made clear this was the reason.
SECOND UPDATE: Some commenters seem to misunderstand my position. No, I do not believe the U.S. Congress is a “marginalized” group, nor do I feel it is a victim here. My primary concern is that if it is appropriate to attack law firms and attorneys based upon the identities or positions of their clients, and if major law firms can be dissuaded from maintaining representation of unpopular clients or causes, then those groups which are truly “marginalized” have the most to fear. While there is little doubt the House could obtain capable representation without King & Spalding or Paul Clement, other groups might not be so fortunate. That is what is ultimately at stake here.
THIRD UPDATE: I heartily recommend this commentary by appellate litigator and University of Chicago adjunct professor Steve Sanders. Interestingly enough, Sanders was Indiana state coordinator for the Human Rights Campaign from 1998-2002 and a member of the Obama campaign’s national LGBT steering and policy committee.
Angus says:
Adler,
Any comment on the provision in the representation agreement prohibiting any employee in the firm, regardless of whether they were involved in this particular case, from even speaking in favor of a change or revocation of DOMA, even on their own time?
My take — I’d save some indignant outrage for Clement and the House Republicans for setting up those conditions.
April 25, 2011, 1:17 pmrumpelstiltskin says:
Seems ridiculous to invoke the term “McCarthyite” against a NON-GOVERNMENTAL organization. “McCarthyism” is so objectionable because it carries the force of state. Otherwise, it’s known as “exercising your First Amendment rights”.
April 25, 2011, 1:24 pmtde says:
“Paul Clement is to be commended for his courage and honor”
Or scorned as hateful bigot.
Take your pick.
(The attempts by Clement, and others, to position himself as some sort of Rosa Parks or legaldom is pretty laughable.)
April 25, 2011, 1:29 pmMike P Wagner says:
I am pretty upset at the HRC for this. I am a “Federal Club” member and will send email today. I get e-mail from Joe Solmonese every day.
Paul Clement is clearly right about this – though I probably don’t agree with him on any other topic. :-)
Mike
April 25, 2011, 1:30 pmAllan says:
No argument that Clement is within his rights to take the case. I would not call him courageous. This is not an Atticus Finch type of case (unlike the attorneys representing terrorists).
Without all the facts, I don’t think K&S should be criticized. There may be a legitimate reason for their actions that we do not know about.
April 25, 2011, 1:30 pmJonathan H. Adler says:
Angus –
I agree with Clement that if there was a problem with the vetting process, then the vetting process should be reformed. You don’t dump a client. I am also not convinced the provision was as broad as some interpretations would suggest, though I recognize others may differ. (There’s a discussion about it on Legal Ethics Forum here.)
rumpelstiltskin –
So the Hollywood Blacklist wasn’t “McCarthyite”? What about the blacklisting of law firms who would defend the rights of Communists? I’m comfortable with the broader understanding of the term.
[EDIT:
tde --
I no more consider an attorney willing to defend the constitutionality of DOMA to be a "hateful bigot" than I consider those willing to defend terrorists to be "anti-American" or "unpatriotic." ]
JHA
April 25, 2011, 1:34 pmArthur Kirkland says:
Delay with respect to issuance of commendations seems prudent until (unless) it is determined (1) whether and why Mr. Clement used a client-constructed engagement letter; (2) whether acceptance of a client-written letter is customary at the firm; (3) whether Mr. Clement was aware of the ‘gag rule’ provision; (4) whether Mr. Clement alerted the firm to the use of the client-prepared engagement letter in general, or the curious ‘gag rule’ in particular; and (5) whether the letter (or any other agreement or assurance) involved any other peculiar term(s).
We may never know the underlying circumstances, for several reasons. But without the relevant background, Mr. Clement’s letter seems as likely to be misleading and self-serving and is it reflect principled and proper objection to his firm’s conduct. The reported engagement letter’s terms indicate a client nearly any large firm might wish to avoid.
April 25, 2011, 1:39 pmSteve says:
Yeah, exactly. Calling this “the new McCarthyism” seems to dumb down pretty significantly what was bad about the “old McCarthyism.”
Lawyers who handle controversial cases (such as the representation of unpopular criminal defendants) have been vilified pretty consistently for a long, long time. The criticism is usually misguided, and those of us who understand the adversarial process should strive to educate the public as to the reasons why. But this sort of criticism was around long before McCarthy and it will be around long after. There is nothing “new” about it nor anything unique about this case.
People should also bear in mind that it is still just an assumption to conclude that K&S dropped the case because of HRC. That may be a convenient narrative, but it is still founded on an assumption rather than known evidence.
April 25, 2011, 1:40 pmCalderon says:
Agree with rumpelstiltskin on this one. Speaking as a libertarian, what made McCarthyism so problematic was government involvement. If a private business doesn’t want to hire alleged Communists or those who provide arguments for upholding DOMA, I do not see the problem.
I also agreed with the same point during the issues with firms representing those accused of terrorism. If private individuals want to bring pressure on those firms not to provide representation, then that’s within their free speech rights to engage in public debate. As lawyers, we can say we’re only represrnting clients and do not necessarily believe in our client’s causes, but the rest of the public doesn’t have to believe us.
April 25, 2011, 1:40 pmJustin says:
The difference between representing Gitmo detainees and representing DOMA is that terrorism suspects have, you know, actual rights which the government must observe. By contrast, DOMA serves only to squelch an individual right of supreme importance. There is nothing heroic about trying to perpetuate that.
Folks, there simply is no longer any argument among people of good faith about marriage equality. The law firm’s decision illustrates the increasing marginalization of gay people’s opposition.
April 25, 2011, 1:47 pmPatty Shundynide says:
Unprofessional and craven dereliction of duty by K&S — they’ve essentially abrogated their professional responsibilities to a client in the face of a heckler’s veto. And they’ve lost a fine lawyer as a result. Clement brought a lot of prestige to K&S’s appellate shop, and it was something of a coup that they landed him in the first place. I feel sorry for him.
April 25, 2011, 2:22 pmSarcastro's Little Brother says:
Yep, that’s always such a convincing argument: My side is right and anyone holding opposing views is acting in bad faith.
April 25, 2011, 2:26 pmHouston Lawyer says:
Apparently, the President, a majority in Congress and a supermajority of state legislators are all operating in bad faith.
April 25, 2011, 2:28 pmNo Theory of Jurisprudence says:
Courage? How come?
April 25, 2011, 2:33 pmM. Gross says:
Let’s not be coy… I didn’t see anything regarding the reported engagement letter’s terms in the linked articles… do you have relevant information?
April 25, 2011, 2:36 pmOld 33 says:
I have no firsthand knowledge of the internal K&S process for taking on such a representation. But in my firm (450 attorneys in 7 states), if a partner wanted to take on such a hot-button political issue (and one which is likely to result in dissention in the partnership and may strain relationships with the firm’s larger, long-term clients), it would have to be a decision of the firm’s executive committee. No one partner, no matter how high profile he is, would be allowed to bind the partnership in that way.
I was stunned when I saw that K&S was representing DOMA. Large law firms are pretty risk-averse institutions, and defending DOMA is not a risk-averse move.
April 25, 2011, 2:36 pmtde says:
If congress were to pass a law that required that all blue-eyed boys have their testicles fed into a meat grinder and the executive branch declined eventually to argue for its constitutionality, would you commend the lawyer who stepped forward (at $550 an hour, mind you) to defend the law as having “courage and honor”?
Or would you say it is a stupid law and he is a misguided fool?
April 25, 2011, 2:38 pmgab says:
Because that’s never happened before…
April 25, 2011, 2:38 pmSteve says:
It is, indeed, sort of amusing to hear people argue that supporters of DOMA are a “marginalized group” with an “unpopular cause.” Yeah, they just can’t get a fair hearing for their views.
April 25, 2011, 2:41 pmMark Field says:
All of the righteous indignation expressed in the post rests on a category error, namely the equation of people and laws. People deserve representation; laws do not, necessarily. There’s nothing courageous about defending a morally abhorrent law, still less one that’s unconstitutional. In contrast, representing a morally abhorrent person can and should vindicate the rule of law and the Constitution itself.
April 25, 2011, 2:44 pmAlanmt says:
Does Adler have some knowledge we don’t?
Because it seems much more likely to me that inhouse attorney and staff dissatisfaction was the most likely cause of the recusal, followed by existing client dissatisfaction. Neither of these implies a lack of courage or integrity, and the former is certainly consistent with a vetting failure.
The clause is very troubling, and virtually unworkable in such a large firm.
April 25, 2011, 2:44 pmJonathan H. Adler says:
tde –
If there were no reasonable arguments in defense of DOMA’s constitutionality, it would be a different matter. But there are plenty of reasonable arguments that can be made that DOMA is constitutional (which is a separate question from whether or not DOMA represents wise or good policy).
JHA
April 25, 2011, 2:48 pmwm13 says:
Everyone is entitled to his own opinions, but people are not entitled to their own definitions of common words. The word “McCarthyism” is commonly used to encompass private actions such as the Hollywood blacklist, so Prof. Adler’s use of the term here comports with customary usage. If some highly principled libertarian thinks that private blacklists are defensible, the only intellectually honest course for that person is to argue that some aspects of McCarthyism were not problematic, rather than disingenuously using the term “McCarthyism” with something other than its accustomed meaning.
April 25, 2011, 2:50 pmNeo says:
My what and whom’s measurement is DOMA “morally abhorrent” and “unconstitutional”? Seems like one would have to litigate to find out. Which is the whole point.
April 25, 2011, 2:51 pm18 USC 1030 says:
This is the comment I left in Orin’s thread and I think it demonstrates a much greater reality to what occured than what Adler suggests
What I am saying is that because of the issues of THIS case and the fact that this ISN’T the usual case, different vetting standards should have been used. I have never had a client whose legal interests were directly opposed to my own. Obviously, I have had potential clients whose legal interests were directly opposed to an existing client’s legal interests and I declined that representation for obvious reasons.
K&S obviously has partners that are members of the LGBT community. This gag order forced those partners, along with staff and associates, to forgo their OWN legal interests for the benefit of the client’s legal interest. That doesn’t seem right to me…
Though it has never happened, I’d imagine if I ever faced a potential client whose legal interests were directly opposed to mine I’d respectfully decline that representation. If I didn’t realize I had the conflict when I agreed to represent the client, I’d then move to remove myself from the representation when I realized the conflict.
Seems to me that this result should have been anticipated. This is the type of case more suitable to a small boutique because there is a much smaller chance of someone being personally affected. This is particularly true if the boutique in question is full of former Bush attorneys.
As to the comparison to the representing GitMo detainees, I’d say there are two differences (1) There is a difference (regardless of your personal views) between arguing in favor of someone having rights versus arguing against someone having rights; (2) there is a much smaller chance of anyone at the form having a direct conflict. The only possible actual conflict I could see is if the attorney’s husband was actually killed or injured by 1 of the detainees represented by the firm and that attorney intended to file a wrongful death suit or some other civil claim. If that happened, I’d think the firm would consider whether that firm could represent the detainee and have the lawyer file the wrongful death suit, or the firm would forgo the representation to avoid the conflict.
Isn’t that what’s going on here?
April 25, 2011, 2:52 pmJonathan H. Adler says:
So the rule of law and constitution aren’t vindicated by ensuring that the constitutionality of validly enacted federal laws are defended in court? That strikes me as a rather odd view, and contrary to the practice of the Supreme Court, which has appointed counsel to defend laws that the Justice Department would not defend (as in Dickerson).
JHA
April 25, 2011, 2:53 pmepluribus says:
wm13 says:
.
April 25, 2011, 2:58 pmWhere is the blacklist? Is a designated group of people being denied employment in a particular industry because they oppose gay marriage? That is how I remember the Hollywood blacklist.
CrazyTrain says:
“McCarthyism” is wildly over the top. Clement is not being blacklisted in the least bit over this — I am sure there were plenty of other firms who would have taken him and his resignation was concurrent with is joining of another high-profile firm. Understand the point, and I do generally agree with the sentiments in the post, but this is hyperbole overload.
April 25, 2011, 2:59 pmB-Rob says:
The word “McCarthyism” sprung from the machinations of a megalomaniac senator who used the power of government, pressure on private actors and innuendo, to harass private citizens for exercising their free speech, freedom of association, and Fifth Amendment rights.
You weaken the meaning of the word “McCarthyism” by ascribing it to non-government actors boycotting a non-government actor for its support of a controversial and discriminatory government policy. By your thinking, it would have been “McCarthyistic” for the NAACP to boycott Kresges because of it’s support and enforcement of Jim Crow laws; ditto the Montgomery bus boycott. The word simply does not work when applied to this situation, where a private actor is being pilloried for its representation of the government in the government’s efforts to continue discriminating against a discrete and insular minority group.
April 25, 2011, 3:01 pmJonathan H. Adler says:
18 usc 1030 –
That’s a plausible account. However, if the so-called “gag order” was the issue, I believe K&S had other options short of terminating the representation. I further believe that if there were no other options, they could have made clear that there were conflicts that they had failed to recognize in the initial vetting process, and could have made some effort to make clear that they were not caving to outside pressure.
JHA
April 25, 2011, 3:03 pmAdam says:
Wow. Non-state actors raising and issue about the public decisions of a private entity are “McCarthyites?” It think you might misunderstand what people objected to about McCarthy’s tactics.
Moreover, how are the elected majority party in the House a “minority group” or federal recognition of tradition marriage an “unpopular opinion?” That’s just entirely disconnected from reality. Cast yourself as the victim much?
April 25, 2011, 3:04 pmfrankcross says:
I think the Hollywood blacklist actually disproves the point it is cited to make.
First, it was clearly a response to government pressure from the HUAC, thus it is a derivative of government action. Second, it prevented people from working, and I don’t expect Clement will lack employment.
April 25, 2011, 3:04 pmyankee says:
The House of Representatives is a marginalized group? Seriously?
McCarthy initiated a government witch-hunt against an imaginary Communist conspiracy that started with his baseless claim that there were 205 “known communists” in the State Department. People who refused to cooperate with his investigations were blacklisted from entire industries. There’s no comparison with a private organization criticizing a prestigious law firm. Nor is there anything “courageous” about a prominent biglaw partner taking his book of business to another firm.
I agree that King & Spalding’s withdrawal of representation following public criticism looks inappropriate and unprofessional. If the problem is the unconventional (and probably unconstitutional) gag order clause in the retention agreement, the appropriate course of action is to ask the client to remove it. But your claim that HRC’s criticisms constitute a “shameful . . . McCarthyite attack” is absurd.
April 25, 2011, 3:09 pmMike P. says:
Justin- your post is question-begging. Whether or not DOMA ‘attacks constitutional rights’ is the issue in the case (and the extent of detainees’ rights are the issues in their cases). Do only ‘morally upright’ people or laws deserve defenses in court? Should a Republican DOJ or law firm drop an Obamacare defense because it dislikes the law?
All people of good faith agree on this? Are you so sure? Under your definition of ‘people of good faith’ the majority of voters in 31 states must be people of bad faith.
April 25, 2011, 3:10 pmB-Rob says:
I have got to believe that the firm’s ethics counsel and the malpractice insurance carrier would have gone APESH*T if this is the case. Of larger concern is whether the representation create a “client interest” or a “business interest” conflict; that is not a situation where a legal position might jeopardize another client’s interests, but it is inconsistent with another client’s philosophical interests and, thus, the firm’s business interests.
In other words, if your firm has represented the NAACP in voter rights litigation for 20 years, you might think twice before representing the KKK on a real estate purchase matter. There is no direct client conflict, but you create a heap of a political problems for the partner who represents the NAACP. This is not all that different from the powerlineblog.org blogger who made a rather bigoted comment about Native American religious practices, when his firm’s long time clients included . . . Indian tribes, including a partner in the firm who was a member of one of those tribes.
April 25, 2011, 3:12 pmwm13 says:
I doubt that that is a workable dichotomy. (It would be more workable to say that unpopular people deserve representation in criminal cases, but not civil ones, although I personally am not advocating that distinction.)
In an earlier era, when prohibitions on advisory opinions were taken more seriously, famous cases such as Pollock v. Farmers Bank were often framed as monetary disputes between private parties. In other words, both sides were “people.” I doubt that those on the left would be happier if K&S had taken a test case, say, representing a company sued by a gay employee for withholding taxes on spousal health benefits.
April 25, 2011, 3:13 pmtde says:
I notice that you didn’t answer the question I asked – whether a it would be courageous and honorable to defend a law that requires that blue-eyed boys have their testicles put in a meat grinder. Why not? If the principle [properly enacted laws must be defended] is what is at stake, it shouldn’t matter whether or not the subject law can be “reasonably defended.” In fact, the worse and more irrational the law, the more courageous the defender.
Here, the DOMA is the product of bigotry and hatred. Feel free to deny that all you want. Clement is defending it for $550 an hour not because of any sense of principles but because he, like you, presumably thinks that it can be “reasonably defended.”
Look, any lawyer worth his salt could come up with solid briefs regarding why slavery was proper, how outlawing it impaired various property rights and so forth. So, too, here.
And, please, pretty please stop comparing Clement with lawyers who defended accused terrorists. There the resources of the United States government were arrayed against often illiterate people who had been captured and sent 5,000 miles away to Guantanamo Bay where they were held for years without trial. To even suggest that what Clement is doing (oh did I mention he is being paid $550 and hour while many Gitmo defense attorneys did it pro bono) is similar to what they did just shows that you are living in some kind of la-la land.
April 25, 2011, 3:18 pmepluribus says:
I second Mark Field and tde.
April 25, 2011, 3:22 pmJustin says:
There appears to once again be two Justins, with somewaht similar general political/legal views the “Justin” who has commented on this thread is not this Justin (who has been posting under that name for 6 or so years). The Justin posting above is the other (newer, I believe) Justin. However, in this case, I take no position to what the new Justin has to say, other than that I once again request the new Justin to choose a different handle on this website.
April 25, 2011, 3:24 pmhelene edwards says:
The disappointment with K&S reflects a basic overestimation of the backbone of lawyers. Lawyers are “tough” mainly in their ability to tenaciously cling to ridiculously fatuous positions, hoping the judge is too lazy to crack a book. But aside from that, they are tremendous pussies, and will do whatever is necessary to curry favor with their corporate masters. So K&S, best known historically for its representation of Coca-Cola, will obviously avoid any public position that clashes with the boardroom zeitgeist, which these days, given the desire to market to cash-rich gays, is overwhelmingly liberal. Only a law professor, insulated from the market, would discount the terror of partners who know how easily a GC can cover himself in glory by recommending a “broader dispersal” of the company’s legal work.
April 25, 2011, 3:26 pmKatahdin says:
At risk of causing someone to start a VC drinking game every time I mention
the name, the case of John Henry Faulk would seem to be an example of private actor McCarthyism, specifically, a grocer from Syracuse, NY started a group that offered to vet the names of actors and so on, for a per name fee. When Faulk started to research why his friends and colleagues were being black balled, he was black balled as well.
The wikipedia article describes the grocer’s group, AWARE, as ‘inspired by McCarthy’. That differs from the impression I got from from Louis Nizer’s book on the subject (‘The Jury Returns’, IIRC). My recollection from the book (anf Faulk’s autobiography) is that the motivation was, or at least soon became, mostly monetary; they were using the threat of boycotts to blackmail payment for ‘vetting’ services.
April 25, 2011, 3:28 pmByomtov says:
Given that the NRO crowd, following the sainted Buckley himself, generally approves of McCarthy, is it possible we are all misreading Adler’s headline?
April 25, 2011, 3:29 pmADF Alliance Alert » King & Spalding succumbs to homosexual lobby; Clement quits firm, stays on DOMA case says:
[...] Ed Whelan at National Review Bench Memos: King & Spalding’s Cowardice and Paul Clement’s Courage. In a similar vein, Eugene Volokh writes at the Volokh Conspiracy: “I think Clement’s decision is right and honorable, and King & Spalding’s decision strikes me as quite mistaken.” See also Jonathan Adler at the Volokh Conspiracy: Paul Clement and the New McCarthyism. [...]
April 25, 2011, 3:29 pmAlanmt says:
As long as King & Spalding has one gay lawyer or staff member, that firm has one person who will be directly harmed if its representation of its client in this action is successful.
I don’t know about whether you easterners have a different moral code, but out here in Montana, not taking that case is the right thing to do.
A while back, an associate’s wife hired a hitman to kill him. The would-be assassin had second thoughts, went to the police, and she was charged with various crimes. You know what? That woman absolutely needed and was entitled to a competent, vigorous defense. But not from my firm.
I am a guy who married my husband in Canada, and neither my state nor the federal government recognizes my marriage. DOMA deserves the best defense it can get. But not from my firm.
And, I would suggest, not from any firm which has a gay lawyer or employee.
18 usc 1030 has the right of it.
April 25, 2011, 3:30 pmNM Kerr says:
Or:
April 25, 2011, 3:30 pm1. They decide that parts of the agreement were both illegal and immoral and thus could not be complied with.
2, They didn’t want to be sued by employees over the gag order
3. They are not bigots who will work to harm people for profit
ShelbyC says:
Yes, it would be courageous. If a law is abhorrent, it should be repealed, or struck down in a valid, adversarial proceeding, not struck down by a judge in a situation why argument by both sides isn’t heard.
April 25, 2011, 3:34 pmAJK says:
tde, I agree there was nothing particularly courageous or admirable about agreeing to take this case. It certainly would have been completely acceptable for King & Spalding to decline to act as counsel here (just as it was completely acceptable and morally unproblematic to agree). But having signed on, it is craven and shameful in the extreme to bow to political pressure and drop out, just as it is shameful to apply that pressure in the first place. By adhering to the basic standards of the profession, Clement is surely taking the principled position, and he deserves respect for that.
April 25, 2011, 3:35 pmAJK says:
That’s a perfectly reasonable position — but you don’t get to adopt it after you sign an agreement to offer that defense.
April 25, 2011, 3:42 pmMike P. says:
Alanmt- should a firm that defends a restrictive abortion law drop its case because someone in the firm wants an abortion? Big firms have employees who disagree on all sorts of things. Besides, if that was K&S’ reason for dropping the case, why do you think K&S took it in the first place? Did they find out about a gay employee they had only after they agreed to take the case?
This episode has more to do with the marginalization of conservatives within the left-wing legal elite than it has to do with anything else. It is also evidence of a willingness among proponents of same-sex marriage to use thuggish tactics on anyone who disagrees with them.
April 25, 2011, 3:42 pmJustin says:
(Older Justin again).
A few of my own thoughts.
1) While I think DOMA is not only a wrong law but also one based in morally reprehensible homophobia, I do not think it is a normatively “good” thing for people to object to a law firm’s representation of the law before Article III courts.
2) While there is a difference between an unpopular person and an unpopular law, I do not think the distinction changes the normative approach to this case; while everyone deserves legal representation, that includes Congress, and the law’s legal propriety will be best determined – and the rule of law best served – by the law being fully defended (and then hopefully rejected by the Courts).
3) That being said, K&S, like all law firms, have a right to choose their paying and nonpaying clients, and even without an apparently oppressive gag order, could rightfully choose to let another law firm defend this case.
4) JHA’s hysterics aside, there would be plenty of law firms who would take this case, including larger, more conservative-friendly law firms, as well as smaller, but still elite, conservative-friendly law firms such as Cooper and Kirk.
5) Likewise, while Paul Clement has done nothing particularly honorable in taking a rightfully unpoular cause on for private gain, particularly if he agrees with the cause, he has done nothing unhonorable or cowardly either (AFAIK). Whether he has done anything courageous is more debatable.
6) I think JHA should know better than to assume K&S’s motivations based on what is essentially an ex-employee’s press release designed to make his decision to part ways look good. K&S may have its own side of the story; such assumptions are no more proper than if someone quits a law firm and claims sex or race discrimination as the reason.
April 25, 2011, 3:43 pmJonathan H. Adler says:
yankee (and others) –
No, the House of Representatives is not a “marginalized” group. But if it is appropriate to attack law firms and attorneys based upon the identities or positions of their clients, and if major law firms can be dissuaded from maintaining representation of unpopular clients or causes, then it is those in “marginalized” groups who have the most to fear. While there is little doubt the House could obtain capable representation without King & Spalding and Paul Clement, other groups might not be so fortunate. That — and not the defense of DOMA — is what is at stake.
As for McCarthy, he didn’t “initiate” the witch hunts. They were well under way when he began, and there was extensive private pressure that paralleled that of the government.
Well said.
JHA
April 25, 2011, 3:46 pmKen Arromdee says:
By this reasoning, as long as you have at least one member who would have to pay a carbon tax, you can’t take a side on a lawsuit in favor of carbon taxes. Or normal taxes, for that matter.
April 25, 2011, 3:46 pmhelene edwards says:
So Alan, you’re living without terror, and with a good career, in a red state? Weren’t we supposed to believe that all those red-state types were so mean? Seems like you have an opportunity to disabuse a lot of people that blue states are where the “nice” people live. Go for it.
April 25, 2011, 3:55 pmMike P Wagner says:
Here’s what I sent to the HRC. I will be interested in their response. Just for those who don’t know, the “Federal Club” membership in HRC indicates a certain level of donation, and is unrelated to the Federalist Society.
Mr. Solmonese,
I am a Federal Club member. I was pretty unhappy today to hear from numerous news sources that the HRC had waged a campaign to persuade a King & Spaulding to drop their representation of the group within the House of Representatives that had hired K&S to defend the DOMA.
Did the HRC in fact encourage K&S to drop their representation?
I have to tell you that such a policy seems very wrong headed to me.
The DOMA is an egregious law, and I am utterly opposed to spending taxpayer money to defend it. However, pressuring a legal firm to cease legal representation of a client because that client is unpopular – or because I disagree with that client – seem to me to do a far greater wrong than any wrong that K&S representation of those Representatives might have wrought.
I would find the use of political or economic pressure to persuade an attorney to drop representation of an LGBT very upsetting. I fail to see the difference between the HRC’s actions and – as hypothetical – WalMart using its political or economic clout to prevent any lawyer in Bentonville, AR from representing a gay man accused of sodomy in that city.
In addition, I found the following statement on the HRC site very upsetting:
“King & Spalding has rightly chosen to put principle above politics in dropping its involvement in the defense of this discriminatory and patently unconstitutional law. We are pleased to see the firm has decided to stand on the right side of history and remain true to its core values. Speaker Boehner is likely to pursue continued defense of this odious law. However, law firms that value LGBT equality should remain committed to those values.”
I am not an attorney, but it seems to me fundamental in our legal system that we avoid attributing the value system, core beliefs, and actions of client to his or her attorney. For example, were we to attribute the core values of an accused murderer or rapist to that person’s attorney, who would chose to represent anyone accused of those crimes?
Wouldn’t we – rightfully – be very upset if the Catholic Church in Boston used its power and prestige to prevent any Roman Catholic attorney in that city from representing an LGBT client, on the grounds that the lawyer should “remain true to his core values”?
April 25, 2011, 4:07 pmTed says:
Mean people do live in the Red States, why do you think they have to pay him to live there?
April 25, 2011, 4:22 pmMark Field says:
I agree with you regarding the distinction between civil and criminal cases. I don’t see the problem when the issue involves defending a law per se. Only the government really does that.
Well, you’re the one who made the distinction between civil and criminal cases. I’m not one to criticize firms for taking civil cases, but I might criticize the policy positions they advocate in doing so. And I don’t believe there’s any “McCarthyism” in my doing so.
April 25, 2011, 4:28 pmMark Field says:
It certainly can be the case that the rule of law is defended by supporting a specific statute, though I’m sure you’d agree that this is not always the case — segregation laws being a good example.
The key point is different: there’s no “courage” involved in representing the government side. Courage comes from representing those defending themselves from the government (something I find odd to say to a libertarian). Representing the government side involves a straightforward debate on the merits of the law, nothing more. If Clement has any defense here, it’s on the merits of the law, not on the collateral risk to the poor and downtrodden.
April 25, 2011, 4:33 pmArthur Kirkland says:
I read in a couple of accounts that the engagement letter (1) had been drafted by the client, which raised a red flag against my background of large-firm practice and (2) contained a peculiar provision that seemed to forbid an exceptionally broad range of political and perhaps other activity by firm lawyers and staff.
If King & Spalding is merely caving to political pressure, I fault the firm. If the firm disliked the process by which it became engaged, particularly with respect to odd and overreaching demands by a high-maintenance client, that is a far different story.
April 25, 2011, 4:36 pmAdam says:
That seems (from our vantage point on the outside anyway) to be the question: did anyone other than Clement agree to take on the case?
Obviously he’s a partner and can bind the firm, so K&S is on tricky ethical ground, although it’s hard to see how there will be any prejudice to the client.
April 25, 2011, 4:38 pmCalderon says:
Arthur Kirkland said:
I don’t understand the focus on “client-constructed/written/prepared” retention letters. I work at a large firm where we represent large corporate clients. For initial engagements (or some special engagements), there’s typically back and forth on the language of those letters, as many large companies have their own form retention letters. The end product is a negotiated documents that reflects the input of both parties. (Subsequent engagements tend to follow the same format negotiated in the first document.) I don’t think Clement using such a letter would be at all unusual, though it may have required another level of sign-off internally (and no one has claimed he did not get all of the K&S approvals necessary).
April 25, 2011, 4:39 pmtde says:
At the risk of evoking Godwin’s law, I guess by some people’s reckoning, the lawyers who worked to enforce the Nazi laws that stripped Jews of their property were “principled and courageous” since they were ensuring that the properly-enacted laws be carried out.
April 25, 2011, 4:41 pmRaoul says:
Just curious. How many opponents of DOMA are demanding nationwide recognition of concealed carry weapons permits issued by the several states?
April 25, 2011, 4:45 pmptt says:
Often from the floor of the House, no less.
April 25, 2011, 4:46 pmRaoul says:
I’m curious. How many opponents of DOMA are demanding nationwide recognition and honoring of concealed carry weapons permits issued by individual states? Yeah, that’s what I thought.
April 25, 2011, 4:47 pmJoseph Slater says:
Yeah, actually I’m kind of surprised that there hasn’t been a “but McCarthy was riiiight!!!’ posts in this thread so far. Having said that, Helene’s line that “lawyers are tremendous pussies” has given that argument a run for the money in terms of lowering the level of discourse.
April 25, 2011, 4:47 pmptt says:
In the circuits in question? Yours is a minority position. Even the AFA’s opinion is that Section 3 is probably unconstitutional.
April 25, 2011, 4:51 pmJonathan H. Adler says:
No, I don’t agree that the rule of law is only served by the defense of laws that I think are good or reasonable. Among other things, the legitimacy of court decisions striking down laws is furthered by ensuring they were ably defended. In other words, the legitimacy of Brown benefited from the work of John Davis on teh other side.
As for the “courage” part, what was courageous was Clement’s willingness to resign from King & Spalding, not necessarily the initial agreement to represent Congress.
JHA
April 25, 2011, 4:56 pmPaul Clement, John W. Davis, And Legal Morality « tracingthetree says:
[...] comparisons to the Guantanamo cases that some on the right are suggesting however, are misguided. When the [...]
April 25, 2011, 4:58 pmMike P. says:
Arthur Kirkland- how can anyone doubt that they caved to political pressure? They would have already known about the conditions of the agreement when they signed on, and so if they had any qualms about it or about DOMA as a law they would have avoided the case in the first place. To deny that most lawyers feel outsized influence from liberal as opposed to conservative interest groups would be to deny reality. This is a firm that is based in a state that voted 76% for man-woman marriage (i.e., nearly the same margin that the city of SF voted against Prop 8). What greater evidence do we need that even in red states lawyers tend to be more liberal than the average person?
April 25, 2011, 5:03 pmptt says:
Maybe the oppressed minority you’re wringing your hands over would be wise to contract representation from the core governing committee of the firm and avoid writing onerous clauses into its own engagement contract.
April 25, 2011, 5:03 pmArthur Kirkland says:
If Mr. Clement properly advanced the firm’s interests in establishing the terms of engagement (for example, by promoting the firm’s standard engagement terms, or by avoiding unusual terms that could disadvantage the firm), and provided proper notice of those terms to the firm while obtaining any relevant approval(s), the fault appears to be the firm’s.
If he did not, his handling of this matter appears to be the precipitate of the problem and his sanctimonious resignation letter brands him an ass.
April 25, 2011, 5:04 pmAdam says:
How is that analogous? Once you get issued a permit in one state, that makes you a “permitted person” with special legal status? Have you tried that one with parking permits?
April 25, 2011, 5:06 pmMark Field says:
Well, the government is generally the entity which defends such laws. I might not criticize the government for defending such laws, though probably I would in extreme cases (say, the Nuremberg Laws, to pick an egregious example). There’s always plenty of criticism from left and right when the government takes positions in cases.
Which gets us back to Paul Clement. I do agree that it took courage for Clement to resign from K&S (assuming the facts are as he stated in his letter, and I have no reason to doubt them). Where I disagree is in the comparison of him to defense counsel for some unpopular individual. He’s going to represent the government; no courage in that. And as I said above, it’s not new for people to criticize the politics of the government’s legal position.
April 25, 2011, 5:07 pmptt says:
With all due respect, if you’re a Federal Club member, don’t you realize that what HRC is doing is exactly what lobbying groups in this country do? HRC doesn’t set the rules. Look at the bilge that comes out of our opponents when they initiate boycotts of firms that do things as innocuous as adopt an inclusive employment policy. Don’t blame HRC for doing what lobbying organizations do.
April 25, 2011, 5:07 pmAdam says:
Who is the “they” in your estimation? At most a handful of lawyers at the firm would have seen the engagement letter before it was signed. Depending on its procedures, it’s possible that it was as few as only one (Clement).
April 25, 2011, 5:10 pm1040 says:
Prof. Adler,
Isn’t private citizens protesting and marshaling opinion against other private actors described by respectable people as “Alinskyite” rather than “McCarthyism”?
April 25, 2011, 5:11 pmArthur Kirkland says:
I have signed hundreds of engagement letters whose terms were not known (at the time of signing) to my partners, who trusted me to (1) adhere to the spirit of the standard terms of engagement approved by the firm, (2) exercise sound judgment when tailoring any novel terms, and (3) direct particular attention to any novel language that deserved review in a system in which partners trusted each other not to tuck any surprises into a system of cursory review that relied on each partner’s character and judgment.
If this is solely a matter of political pressure (which any firm should have expected), King & Spalding deserves criticism for its withdrawal.
April 25, 2011, 5:13 pmCJColucci says:
There’s obviously more going on here than we know about. At face value, K&S didn’t have to take the client, but, having taken it, shouldn’t have dropped it. Still, the level of “pressure” on K&S doesn’t seem out of the ordinary, certainly not enough to force a big, rich, well-connected establishment law firm to dump what is, after all, a paying client, even one as disreputable as the House of Representatives. Add to it that K&S has now lost a high-profile new hire that it fully expected to generate a gazillion in fees, and a recruiting magnet, for another two decades or so. I suspect that something more than disapproval from a segment of the public was involved here. I’m guessing that something went very wrong with the case intake process — maybe a high-profile partner unfamiliar with K&S’s procedures, or law firm procedures in general, committed the firm to unacceptable terms without proper review — but I’ll await further news.
April 25, 2011, 5:16 pmBrian H says:
Maybe the funniest thing I have ever read in a comment.
April 25, 2011, 5:22 pmAdam says:
Given that the reported rate for Clement sounds like roughly 50% off, maybe they just weren’t happy with the price ;)
April 25, 2011, 5:26 pmptt says:
Since the rate also applied to the kid who does the photocopying in the mailroom, it doesn’t seem like a big discount.
April 25, 2011, 5:31 pmGeorge Matrox says:
Some comments in this and related threads seek to excuse King & Spalding’s withdrawal on the basis of a “gag” rule in the engagement agreement that supposedly broadly prevents K&S’s LGBT employees from speaking their mind. The agreement, however, does not reach so far. It quite evidently has the purpose of constraining K&S personnel from lobbying Congress in ways that would be inconsistent with K&S’s role as counsel acting for the House and under the direction of the Committee on House Administration. These constraints include not only lobbying Congress for or against alterations to DOMA, but also lobbying on other topics directed to the Committee (in the case of K&S personnel not working on the case) or any committee (in the case of those working on the case).
Paragraphs 4f-4h of the agreement establish these restrictions on lobbying:
These seem like reasonable constraints in the circumstances, and would not have the gagging effects that some of the comments attribute to them. And, for what it is worth, the provisions seem tailored to accommodate K&S’s lobbying practice on other subjects.
April 25, 2011, 5:32 pmMDJD from NY says:
What ate the procedures of K&S? Surely, they at least have some sort of internal interest chececk.
It’s hard to believe that a law firm allows one member of the firm with hundreds of lawyers in places from Riyadh to Frankfurt would allow one lawyer to sign engagement contracts on behalf of the firm without any input from other members. But I suppose the facts regarding their internal procedures will emerge.
April 25, 2011, 5:41 pmMalvolio says:
So… the firm should fire all its gay employees?
BTW, is it really unusually for a client to insist that none of the employees (and partners and associates) of its lawyer publicly take a position opposing the client? It seems pretty basic to me, but IANAL.
It think it’s funny that the medieval Catholic Church — not usually held up as an example of fairness and open-mindedness — would appoint a lawyer, which they actually called the Devil’s advocate, to defend the proposition that a candidate for sainthood, already officially Blessed, might be a charlatan or even a minion of Hell; while people who call themselves liberals attack a lawyer for attempting to defend a law passed by a democratically selected legislature, signed by a democratically elected president, and supported by a healthy majority of the population.
As for whether it’s McCarthyism: it is or it isn’t, but it’s certainly trying to be McCarthyism. Assuming the story is correct, that HRW successfully pressured K&S into dropping the case by threatening their client base, HRW only did what it did in the hopes of depriving DOMA’s supporter of legal help. Their goal was to interfere with the civil rights of the DOMA’s supporters. How successful they were is an open question of course, but a failure of ends doesn’t justify the means.
Of course, there is always the possibility the K&S just didn’t feel like keeping the case, which makes the whole story less interesting.
April 25, 2011, 5:45 pmNM Kerr says:
It means that the guy who works in the mail room is forbidden from writing his congress man in support of the repeal of DOMA. Does any law firm or company have that right to restrict speech, not even the military claims that right?
April 25, 2011, 5:48 pmAdam says:
I’m not sure I follow you. g. seems to say that K&S employees who aren’t involved the case can’t “lobby” or “advocate” on DOMA and doesn’t seem to be limited to their professional capacity. How doesn’t that bar a K&S mail room employee from writing a letter to his Congressman about DOMA? And why is that broad of a restriction necessary?
April 25, 2011, 5:49 pmAdam says:
They certainly have a conflict check process, but that doesn’t necessarily involve the engagement letter.
Having worked at a law firm of similar size and scope, I do not find it hard to believe that a single partner could engage the firm without much input from other members. In fact, I’m certain it happens all the time on uncontroversial matters.
April 25, 2011, 5:51 pm1040 says:
Such modesty of terminology! On the Internet, you should really go Nazi or go home.
April 25, 2011, 5:52 pmMalvolio says:
Well, don’t let us detain you, but if you do choose to stay, you might want to say why you don’t agree.
April 25, 2011, 5:56 pm1040 says:
Of course, I wouldn’t dream of disagreeing with you, Malvolio. I am just fully in praise of your reserve and modesty. And your erudite understatement certainly keeps me here, so please don’t be afraid of being inhospitable.
Malvolio: It think it’s funny that the medieval Catholic Church — not usually held up as an example of fairness and open-mindedness — would appoint a lawyer, which they actually called the Devil’s advocate, to defend the proposition that a candidate for sainthood, already officially Blessed, might be a charlatan or even a minion of Hell;
I am sure that even the evil liberals you so hate would be able to come up with the equivalent of a devil’s advocate process that can certify miracles in this day and age for Mother Teresa and Pope John Paul II. Maybe some Bush league military tribunals?
April 25, 2011, 6:02 pmPorkchop says:
George Matrox,
If this is actually part of the engagement letter, it looks to me as if it goes beyond lobbying. I think that the “anti-advocacy” provision goes beyond forbidding lobbying. For example, I would interpret that to prohibit the writing of opinion pieces or participation in rallies, meetings, etc. relating to any issue that is pending in the House of Representatives. That’s a pretty big free speech problem whether it involves speech by a partner or by a guy in the mailroom.
Even with respect to lobbying, though, since King & Spalding has a DC office, I would guess that they have people who engage in lobbying. (Most large firms with DC offices have them — that’s one big reason to have a DC office in the first place.) This provision essentially guts the lobbying practice for the duration of the engagement. That cannot have gone down well with the lobbying arm of the firm — or their lobbying clients who would be forced to look elsewhere for representation.
April 25, 2011, 6:06 pmChris Travers says:
Just for the record, my mother’s uncle resigned from a major law firm because he refused to play the no-defense-for-communists game. I would agree that the broader definition works well.
April 25, 2011, 6:17 pmChris Travers says:
But that only extends to those who are actively involved in performing services persuant to the agreement, right?
I think you’d really have to interpret this narrowly and exclude the guy in the mailroom, limiting it to those who were actively and specifically working on the case (lawyers, paralegals, etc). Remember, this is a contract with the government and so at least arguably raises at least some first amendment issues.
I think such a narrow interpretation of who is covered is reasonable in that if someone is involved in going to rallies, lobbying Congress, etc. and also specifically involved in defending legislation they are trying to get repealed, that’s a pretty big conflict of interest. I am not sure the conflict of interest extends very far though.
April 25, 2011, 6:22 pm1040 says:
It’s a sad day for McCarthyism when it is defined down to negative PR campaigns by unaffiliated third parties. You know what else is McCarthyist? Singling out HRW for protesting S&G’s defense of DOMA.
April 25, 2011, 6:23 pmyankee says:
I cannot concur. Defending the government’s right to perpetuate injustice is a world away from representing any private party. I would not think well of John Adams for defending a statute giving British troops the right to shoot protesters against charges that it violated the (unwritten) British constitution, and I see no reason he should be immune from criticism for doing so.
ETA: To clarify, I do not believe DOMA is the moral equivalent of a law allowing the government to shoot protesters. The basic principle is that defending the government’s right to perpetuate injustice is different from any other kind of representation.
April 25, 2011, 6:26 pmMalvolio says:
I don’t hate liberals. Some of my best friends are liberals. I live in Nancy Pelosi’s district, for crying out loud. I just wish liberals would act, uh, liberally. You know, diversity (of opinion), due process (even for an obviously bad law), acceptance of others (even libertarians or even conservatives).
As for “Bush’s military tribunals”, I think we should follow the linguistic example of Dr Guillotine, who advocated but did not invent the judicial procedure that now bears his name, and call the tribunals “Holder courts” or even “Obama courts”, after their most prominent exponents.
April 25, 2011, 6:29 pmGeorge Matrox says:
Porkchop,
You stated:
Then quote paragraph 4f, which applies “partners and employees who perform services pursuant to this Agreement.” That doesn’t seem to gut K&S’s lobbying practice. It only requires that those directly representing the House refrain from lobbying the House and its committees. Although paragraph 4f restricts what those partners and employees can advocate, when the House itself is the client restrictions of this type are necessary to avoid (a) undercutting the purpose of the representation and (b) the appearance that those working for the House have special access to its decisionmaking for their other clients’ (or their own) interests.
Paragraph 4g (concerning other partners and employees) seems to present a closer question as to whether it is more restrictive than appropriate, but note that it has more limited restrictions than paragraph 4f. Paragraph 4h seems beyond any controversy.
April 25, 2011, 6:29 pm1040 says:
I said “Bush league military tribunals”. Make of your interpretation what you will, but I am referring to military tribunals that do not pass constitutional muster and afford defendants due process.
April 25, 2011, 6:31 pmChris Travers says:
I think DOMA is Unconstitutional. I think it will be should be struck down under both federalism and EPC grounds. I am glad it is being defended, and I think the GLBT crowd is making a serious strategic error in targetting the law firm.
Imagine the following hypo: Obama claims that DOMA is Unconstitutional and refuses to defend it. He directs government to refer to state law only as to who is allowed to get married. For the next four years, gay and lesbian married couples get all federal benefits of marriage.
Then a Republican president reverses course, enforcing and defending the law aggressively. They try to deport same-sex spouses brought over on I-129F petitions. They look for those who would have paid more taxes if they filed singly and seek back taxes, etc. They threaten folks with prosecutions for fraud in the hopes of getting cooperation (even though elements of these would not be readily provable in court), etc.
Now you have a big problem. By the time DOMA gets struck down or repealed, it causes a much higher human cost, and all because stability in the law was not given a higher priority than it was.
I am confident that DOMA will eventually be struck down by the courts. In part BECAUSE of that, I want to see the case reach the Supreme Court. I don’t want a future government to arbitrarily and capriciously decide to reinstate enforcement of a law against a socially unacceptable minority just because it pleases key constituencies.
April 25, 2011, 6:31 pmJonathan H. Adler says:
Perhaps, but I don’t know much about Alinsky.
JHA
April 25, 2011, 6:31 pmCalderon says:
As always, I’m late to this issue, but do not see a category error. Every legal case is going to involve (among other things) interested people and legal principles on both sides. Under your framework, a pro-DOMA person could claim that the fight is between an abstract legal principle of special rights versus the interests of good Christian, god-fearing people who are harmed by gay marriage. The reality is that on one side you have both gays and the legal principle that they should have equal rights, while on the other you have those who claim to be harmed by gay marriage and principles such as the presumption of constitutionality for validly enacted laws.
To take a concrete example from the other political side, in US v. Morrison, Morrison was a person who deserved representation against the government (and the principle of enumerated powers also deserved a defense). But suppose the government refused to defend that provision of VAWA (which was, after all, held to be unconstitutional). If a private law firm stepped in to defend the law, they’d be representing Brzonkala’s interest in addition to the interest of the “laws.”
April 25, 2011, 6:36 pmInstapundit » Blog Archive » OF COURSE, UNDER THIS NEW POSITION it’s going to be much harder for King & Spalding to distance itse… says:
[...] Paul Clement and the new McCarthyism. Did they go after the lawyers with the old McCarthyism? But ultimately, I think the public-interest [...]
April 25, 2011, 6:36 pmMalvolio says:
Although I disagree with Yankee’s point, I think it’s an intelligent one. When do we have an obligation to defend a law (procedurally, not substantial), even if we believe it to be unjust?
The answer is simply stated (if difficult to apply): when it’s a (possibly flawed) product of an essentially just system. George III’s Parliament was imperfect but it could not have even conceived of legalizing the shooting of peaceful demonstrators.
If you argue that DOMA is so morally indefensible, then you necessarily have to argue that the people (starting with Bill Clinton) and the institutions that produced it were not just in error, but fundamentally unequipped to govern. Even I, dyed-in-the-wool Clinton hater and basically neutral on DOMA itself, would be willing to go that far.
April 25, 2011, 6:37 pmGeorge Matrox says:
Yes, law firms have a duty of loyalty to their clients and therefore have the right to restrict the speech of their partners and employees as it reflects on their clients and the client matters the firms are handling. When lawyers represent public agencies, they are often limited in how they can advocate causes before those agencies.
April 25, 2011, 6:41 pmCalderon says:
I haven’t seen any claims that he failed to obtain any necessary approvals. One would certainly have expected K&S to bring that up in their statement if it were true.
April 25, 2011, 6:43 pmrichard40 says:
This is just another case of the hipocritical left refusing to apply a rule to itself, that it constantly advocates for others. The left has been constantly defending the Guantonamo lawyers by saying that everybody, no matter how guilty they are, or how poor their legal argument, deserves legal representation, and lawyers should never be criticised for providing it. But now that a law firm is defending a client that the left does not like, all bets are off, and it is perfectly OK to apply pressure on the lawyers to desert their client.
Of course the right is equally guilty,loudly criticising the Guantonamo lawyers, while praising the DOMA ones. Only libertarians are consistent in their principles, defending the right of both parties to get legal representation.
April 25, 2011, 6:50 pmArthur Kirkland says:
I just KNEW I was a libertarian. Thank you for confirming my hunch.
April 25, 2011, 7:11 pmChris Travers says:
Ummm Defending the Nuremberg laws? Or the ex post facto application in the Nuremberg tribunals? Don’t get me wrong some of the Nuremberg laws (particularly the prohibition against waging or planning wars of aggression) would probably be Unconstitutionally Vague, you never know. A court might come up with some sort of objective theory here.
But what makes Nuremberg so offensive to my sense of justice is the ex post facto nature of so many of the laws being prosecuted, rather than what they actually said.
April 25, 2011, 7:13 pmArthur Kirkland says:
If the “client loyalty” standards of the House-Clement engagement letter were common, we would have many more Bancrofts (firms of intense ideological purity) and fewer King & Spaldings (firms that hire Republicans and Democrats). That would be unfortunate, in my judgment.
April 25, 2011, 7:20 pmMark Field says:
The Nuremberg Laws.
Calderon, I’m not ignoring your point, but I’ve responded to it elsewhere; too many threads.
April 25, 2011, 7:23 pmArthur Kirkland says:
Let’s hope more information develops concerning the manner in which this client entered and departed King & Spalding.
Perhaps King & Spalding acted shabbily. Perhaps Mr. Clement did. And perhaps King & Spalding possesses enough to class to refrain from circulating self-serving letters.
April 25, 2011, 7:26 pmCurmudgeon says:
Slightly off-topic, but this lawsuit is not about ‘ending discrimination.’ It’s about one group wanting to switch from the loosing side to the wining side. They should be arguing to end subsidies for traditional marriage.
April 25, 2011, 7:32 pmKevin R.C. O'Brien says:
King and Spalding did not make a principled decision in this case. The firm, and its lawyers, have never made a principled decision in their grasping, greedy lives. These are guys who sold out a partner and a client for money just now, in the same way that they have sold out their country in the past.
Just as in their “pro bono” terrorist defense practice, which is funded by indirect retainers from the very same Gulf Arab financiers who arm and equip the rest of Al Qaeda, their decision in this case is a simple Net Present Value calculation.
Unlike the gay activists, who can hurt their business and will, nobody on the other side will cost them a dime.
And the beauty of changing sides is that you now have your new opponent’s previous strategy and other confidential information. (Oh yeah, “legal ethics” mean you won’t use it, riiiiight).
An unprincipled lawyer sells his mother for a nickel. A principled one knows he can hold out for a quarter.
April 25, 2011, 8:22 pm1040 says:
Great analysis, but by this reckoning, aren’t King and Spalding principled?
April 25, 2011, 8:27 pmRaoul says:
If Alabama should be compelled to honor a marriage license issued by the state of Massachusetts, why shouldn’t Massachusetts be compelled to honor a pistol carry license issued by the state of Alabama? Seems pretty analogous to me.
April 25, 2011, 8:31 pmKevin R.C. O'Brien says:
Ow! 1040, I’m not sure. Perhaps the K&S managing partner left a judicial nomination or something like that on the table. But if he did exact all the value that could be exacted from this volte-face, you’re right.
I’m sure he’s principled though. I mean, lawyers talk all the time about how principled they are, even as they routinely loot their clients’ escrow money. So I defer to them as superior judges of what is principled. For are they not honorable men?
The evil that men do lives after them, but it doesn’t continue to return a percentage unless they wet the lawyers’ beaks.
April 25, 2011, 8:48 pmAdam B. says:
Query: why should a law firm’s commitment to defend the constitutionality of a statute prevent employees from arguing against its wisdom?
April 25, 2011, 9:24 pmMark Field says:
Because the duty of loyalty to a client means the firm should speak with one voice on the matter of representation. Obviously, that makes for difficult choices sometimes.
April 25, 2011, 9:30 pmDesiderius says:
“My primary concern is that if it is appropriate to attack law firms and attorneys based upon the identities or positions of their clients, and if major law firms can be dissuaded from maintaining representation of unpopular clients or causes, then those groups which are truly ‘marginalized’ have the most to fear.”
Given the profoundly unmarginal status (gay marriage is a cause celebre felt most strongly on elite campuses) of those pressing the attacks, has anyone considered the possibility that this result is seen by advocates not as a bug but a feature?
Or worse, that it functions as such unseen, even by the attackers?
April 25, 2011, 9:44 pm1040 says:
You forgot to insert the word arugula in there, otherwise your case would’ve been, what’s the word, a slam dunk.
April 25, 2011, 9:47 pmnick056 says:
Calderon,
I don’t know that I fully support Mark’s category distinction, but I challenge your reading here. In a criminal case, both parties absolutely have something on the line and it’s easily proven. In the DOMA case, “Christian, god-fearing people” can allege harm, but it’s simply not there. It’s not even prospective — it’s just invented. At best it’s a philosophy or a feeling to which we owe some respect, or which deserves some indulgence. It’s nowhere near the kind of interest we protect with the court system. The people who have standing to sue to overturn DOMA, however, are alleging harm. that’s pretty specific and actual.
Incidentally, I think a firm touting its LGBT credentials shouldn’t be taking this case on. No firm (?) touts its credentials as unwilling to defend henoius people, but for exactly the same category distinction Mark postulates, other firms (like this one) tout their credentials when it comes to opposing discriminatory laws.
April 25, 2011, 9:55 pmMarty says:
“…once-proud firm… ” is exactly right. No longer proud or honorable.
April 25, 2011, 10:52 pmRaoul says:
Other than the fact that the RKBA is explicitly guaranteed by the Constitution and was universally recognized at the time of the Founding, while “gay marriage” isn’t mentioned in the Constitution and was universally illegal at the time of the Founding, other than the fact that you like “gay marriage” and hate the Second Amendment, why would you demand that states honor another state’s marriage license but not the concealed gun license?
April 25, 2011, 11:28 pmMike P Wagner says:
I am responsible for the ethics of those organizations I support – not for the ethics of those organizations I oppose. HRC is one of my larger monthly contributions.
April 25, 2011, 11:30 pmsloopl3 says:
I always get a kick when those that are arguing AGAINST an expansion (or “leveling up”) of rights are compared to those arguing for such an expansion. It seems to me there is a fundamental difference between the two. Every side deserves representation, and I think both Clement and K&J have perfectly acceptable arguments (though certainly it could have been handled much better). Reasonable minds can differ.
April 25, 2011, 11:32 pmTJ Parker says:
But of course this is not what DOMA does.
April 25, 2011, 11:37 pmrpt says:
That does appear to be a blanket ban on all lobbying.
April 25, 2011, 11:38 pmrpt says:
Are there really any litigators at Bancroft? No associates? And who is the “Bancroft”?
April 25, 2011, 11:43 pmRaoul says:
Bullshite. DOMA allows Alabama to ignore a Massachusetts gay couples marriage license in exactly, precisely the same way that Mass. ignores a pistol license issued by the State of Alabama.
April 25, 2011, 11:46 pmMark Field says:
It does, but that provision is not at issue in this case.
April 26, 2011, 12:04 amrpt says:
It appears that Coke made the decision here. If you are management, do you risk the firm’s oldest and/or largest client in exchange for a case brought in by the new guy in the DC branch office? Not very good business judgment on Clement’s part, but he can probably bill at full rates at the new place, if he hires some associates to do the real work. Still curious from a nonpolitical perspective as to how Bancroft can afford to pay Clement and staff this case.
April 26, 2011, 12:05 amThe DOMA Battle — IGF Culture Watch says:
[...] Update: King & Spalding feels the pressure and withdraws. Firm Partner Paul Clement, a former Solicitor General, resigned in order to continue the defense of DOMA he agreed to undertake. LGBT activists cheered; others warned of a New McCarthyism. [...]
April 26, 2011, 12:25 amRaoul says:
The way I understand it, DOMA does not prevent a state from codifying same gender marriage, simply exempts other states from being forced to give full faith and credit to another states marriage licenses. What am I missing?
April 26, 2011, 12:27 amShelbyC says:
This is flat wrong. We don’t want judges running around striking down validly enacted laws without the arguments in favor of the law being fairly presented.
April 26, 2011, 1:35 amgreg in denver says:
Group think is bar far the evil of our day. The left has now embraced it in all forms, and not just at 2am stoned in a conversation with a future president.
Emote MORE, Think LESS, that IS Progressive.
April 26, 2011, 1:59 amJosh K. says:
As best as I can tell, the objection to what K&S did is due to a combination of (a) dumping a client after agreeing to represent it because of (b) political pressure. Consider some counterfactuals:
* K&S dumps Congress after agreeing to represent it because the law firm realized the case went against the partners’ values. Apparently this would be OK–consider Adler’s comment that if the law firm objected to the gag rule, and exhausted all other options, it would be OK to end the contract.
* K&S refuses to take on the defense of DOMA before agreeing to represent Congress because the law firm was afraid of pissing off its other clients like Coca-Cola. No one attacking K&S in this thread has explicitly said this is OK , but I imagine this “self-censorship” in client selection is very common.
* K&S refuses to take on the client before agreeing to represent it because the case goes against the values of the partners. Presumably this would be OK–and, I imagine, occurs all the time.
My point being that it seems like some awfully thin lines are being drawn here. Caving to political pressure versus acting on ideals–is it really possible for an observer to disentangle these two? Did a partner at K&S pull the plug because he/she was afraid of pissing off other clients, or did he/she have a have a genuine change of heart and realized defending DOMA was a bad decision. Who can say with certainty?
Dumping a client after agreeing to take on its case–since K&S are withdrawing so soon after agreeing to take on the case, it looks like Congress’s DOMA defense is no worse off than it would be had K&S never agreed to take on the case in the first place. Moreover, the K&S statement says that it is complying with NY’s Rules of Professional Conduct, which states that a lawyer can withdraw only if (a) the client is not adversely affected or if (b) it has good reason to. I do not know on what grounds K&S is justifying its withdrawal, but it looks like they are on firm ground as far as (a) is concerned (since Clement is still representing Congress at Bancroft). It is not like K&S agreed to take on a terrorist suspect and then dumped him midway through the case to be represented by some inexperienced public defender.
April 26, 2011, 2:41 amKen Arromdee says:
The Nazi government was so illegitimate that it was okay to kill people to get rid of it. If it was okay to work against it by killing people, then it should be okay to work against it by undermining its legal system. That says little about the propriety of undermining more legitimate governments.
April 26, 2011, 4:07 amDesiderius says:
What case? It was a question, and a serious one.
When a corporation tells a law firm that the House of our Representatives is beyond the pale, and the law firm snaps to attention, am I really supposed to accept without question that said firm is acting in a “progressive”, let alone liberal, manner?
April 26, 2011, 6:05 amnyccine says:
No, it is you who misunderstand the objections to McCarthyism, and bears a sad reflection on the modern “legalistic morality”; the notion that because the First Amendement only prohibits Congress (and, via incorporation, the States as well), then it is just fine if private actors shut down opposing speech, because there’s no law against it, is horrendous. The reason McCarthyism is wrong, and why it is valid to apply the label to private actors, is because of the end results – a society in which taking up unpopular opinions results in the end of one’s ability to support one’s-self can no more be said to have “freedom of speech” that a society in which taking up unpopular opinions results in imprisonment; and no, the fact that Clement *can* find continued employment doesn’t change the fact that HRC’s – a number of LGBT groups, actually – goal *is* to create an environment in which no firm will dare represent DOMA. This case carries greater ramifications by its nature, since it also carries the implication that unpopular individuals might not be entitled to representation in court – there’s no particularly compelling reason why we should hold that it’s ok to circumvent the adversary process with respect to laws, but always uphold it with respect to individuals; some group with sufficient influence to pull it off *is* going to use HRC’s methods here to get their way, if this tactic is seen as legitimate.
April 26, 2011, 7:29 amnyccine says:
Nonsense; people in a society have a vested interest in protecting social cohesiveness, and marriage, as arguably the most important social institution, bears special protection; the collapse of marriage leads to te collapse of society as a whole, and that’s a legitimate harm.
April 26, 2011, 7:36 amNick says:
Marriage makes men less reckless. Gay marriage makes gay men less reckless. Society collapses regardless.
April 26, 2011, 8:03 amAdam J says:
nyccine- Nonsense, your marriage isn’t endanger of collapsing just because two gay people can get married as well.
April 26, 2011, 10:13 amMark Field says:
DOMA does contain a provision such as you describe. It also contains a provision that forbids the federal government from recognizing gay marriages even if a state does so. Thus, for example, a gay couple in MA can’t file tax returns as “married filing jointly”. This general ban affecting only the federal government is the provision which is at issue here, not the one affecting other states.
April 26, 2011, 10:32 amThe Intolerance of the “Tolerant” | says:
[...] not surprisingly, the venom spewed at Clement’s firm impacted its central nervous system, causing a shutdown and the hysterical [...]
April 26, 2011, 10:40 amIs the Defense of the Defense of Marriage Act Defensible? — IGF Culture Watch says:
[...] LGBT activists cheered; others warned of a New McCarthyism. [...]
April 26, 2011, 10:48 amAdam says:
Because they aren’t honoring the license, they are honoring the status of the married couple. If Massachusetts didn’t require a marriage license, Alambama would still recognize the marriage.
April 26, 2011, 11:51 amAdam says:
As Mark Field said, that’s in DOMA, but that’s not the provision at issue here. Sec. 3, which is at issue here, says that Federal government won’t recognize marriages the states deem valid if they are same-sex.
ETA: Btw, this section also should give any strong federalist pause as it is among the first forays into a federal family law. Questions like who is married have traditionally be dedicated to state law.
April 26, 2011, 11:56 amEthics Hero: Attorney Paul Clement | Ethics Alarms says:
[...] Writing at the Volokh Conspiracy, Jonathan Adler summed up the correctness of Clement’s act: [...]
April 26, 2011, 2:30 pmKing & Spalding Withdraws From DOMA Defense. Thuggery? No, Just A Business Decision says:
[...] Volokh Conspiracy’s Jonathan Adler essentially agrees with Sullivan: When some conservatives attacked private law firms and threatened retaliation for defending accused [...]
April 26, 2011, 2:47 pmptt says:
An example of what Section 3 of DOMA does, courtesy of Andrew Sullivan:
http://andrewsullivan.thedailybeast.com/2011/04/a-widower-has-to-sell-his-home.html
The nitty-gritty is in the last third.
April 26, 2011, 2:50 pmChris Travers says:
I suspect this is why Jack Balkin wrote so much in opposition to the district court’s conclusions in Gill v. OPM, and David Kopel wrote such a great reply to Balkin.
Section 3 of DOMA needs to go, preferably on federalism grounds.
(Section 2 OTOH probably does absolutely nothing since it isn’t clear to me that states don’t have discretion on recognizing, for example, first cousin marriages performed in other states.)
April 26, 2011, 3:28 pmClarknt67 says:
All criticism is not “McCarthyism.”
Every liberal victory is not the ushering in of fascism.
What a ridiculous response.
Clement is now happily ensconced in a firm with a bunch of ex-Bush administration people, and still defending the government’s right to practice de jure discrimination against LGBT Americans.
Which appears to be a better fit for Clement than K&S., a firm that is committed to the principle of LGBT equality, as expressed on their own website. This is merely a hypocrisy that LGBT activists drew to K&S’s attention, and happily, K&S agree, you can not simultaneously express to support LGBT equality and work against it.
Everyone should be happy here. DOMA gets it’s day in court still and the advocacy of a former Solicitor General.
Really, this is over the top. “McCarthyism.”
April 26, 2011, 7:21 pmMichael Ejercito says:
So were the anti-bigamy laws passed in the 19th century.
But not only were they defended, they were upheld by a series of unanimous Supreme Court decisions. In fact, one of them, Murphy v. Ramsey, 114 U.S. 15 (1885), is quoted in the legislative summary of DOMA.
K & S is located in Georgia, where there is no legal recognition of same-sex “marriage”. In fact, without anyone defending DOMA, it can not reach the Supreme Court.
April 26, 2011, 10:06 pmnyccine says:
You know, it’s the damndest thing. You clearly refer to me by name in your post; yet, you don’t address my statement in the slightest – in fact, your post doesn’t seem to actually contain a legitimate criticism of any statements made by pro-DOMA individuals (nor, for that matter, does it contain any serious positive claims); your statement doesn’t actually appear to be anything more than partisan ranting, devoid of any merit.
The issue isn’t that *my* marriage (btw – I’m not married) would immediately collapse – though while we’re on the subject, another piece of evidence that your post was nothing more than partisan trolling is the fact that you could only hold that belief if you have never actually interracted with humans in a social environment; diminishing the importanct of a particular activity most certainly *does* lead to people not wanting to continue the activity, and in the case of marriage, all the more so for individuals that were already far removed from traditional social norms, in much the same way that the rush to enact “no-fault divorce” legislation led individuals that seemed perfectly content with their marriage to call it quits, not because there were serious underlying problems, but simply because they could.
April 27, 2011, 7:47 amThe real issue, though, is for future generations, who won’t have any incentives to create families thanks to all the damage done to the institution. Is gay “marriage” the biggest problem? No, certainly, but the first rule of holes, of course, is to stop digging them. Undoing the damage done by no-dault divorce, the sexual revolution, etc will take years, if it’s even possible, but at least we can try and stop the whole thing from collapsing.
Toby says:
I have had several federal contracts. In each case, the company and its subcontractors must sign essentially (and perhaps precisely) the same agreement that so many on this thread are decrying: no lobbying by any direct participants in the contract during the extent of the contract on matters concerning the contract. In most cases, there is language about the federal agency and the contracting officers of that agency. In this case, as the agency is Congress, Congress is called out. Such contractors are also asked, in advance, to report on the prior lobbying activities of the by themselves or by their near relatives. This is a part of the vetting procedure before contract award.
The first amendment remedy is to not take government contracts.
This language was hardly invented for this letter of engagement. At a guess, King & Spalding have this same clause in dozens, if not hundreds, of contracts that they already have on file. This is so common that it suggests that those professing outrage have never had a federal contract, or that they are expressing false outrage over the first amendment issues for political effect. In neither case, does it increase respect for other aspects of their argument.
April 27, 2011, 10:47 amSteveW says:
You’re giving the HRC too much credit. Isn’t it more likely that K&S failed to consider the diversity/equality guidelines that its large corporate clients take into account when awarding business? It is not an exaggeration to say that the continued employment of hundreds of K&S employees was at stake. Those clients would never say that they awarded the work for a particular transaction or case on the basis of this representation, but it would be a factor weighing against K&S in the competition for business. Allowing Clement to take the case to another firm was the most responsible decision for the firm and its employees.
April 27, 2011, 12:10 pmRaoul says:
So the suit challenging DOMA is just about benefits provided for same gender couples and families? OK.
If the federal government lacks the power to define marriage, what happens if a state legalizes polygamy? Would a federal employee with four wives and 19 children get benefits for the entire “family”? And if a state legalized same gender marriage,sibling marriage and polygamy, would a guy who married his brother and three sisters get benefits for them all?
Maybe the government should pay employees with money only and let them buy their own benefits.
April 28, 2011, 12:01 amHunter says:
I think Adler gives too much weight to HRC’s influence here. The idea that a law firm of K&S’s stature, or that firm’s major clients, are going to cave under pressure from an organization that has pretty much proven itself ineffective across the board is very close to grasping at straws. I realize that HRC is claiming credit, but quite honestly, anyone in the GLBT community (outside of Washington, at least) is taking that with something more than a grain of salt.
Quite aside from the very real difference between defending unpopular clients’ constitutional rights and seeking to uphold a law that denies fundamental rights, I suspect that internal politics weighed a lot more heavily in K&S’s decision than anything HRC did or could have done. The gag order, which in spite of several assertions here applied to all K&S employees, everywhere, I’m sure provided a major impetus for re-examining the arrangement — it is quite probably flatly illegal in New York and California, where K&S has offices.
As for the “moral” dimension of K&S’s decision, from all accounts the firm has followed accepted procedures for extricating itself from a bad deal — it’s not a matter of dumping the client mid-trial. In that light, it would seem that objections boil down to “How dare they not defend DOMA?”
It is somewhat reassuring, however, to know that no matter what small victories the gay community achieves, there will always be someone, whether inside or outside of the community, to proclaim that it just proves what bullies we are.
April 30, 2011, 6:16 amJonathanU says:
I’m still not clear on what were these alleged strong-arm tactics that HRC used. They have not been detailed anywhere that I can find, which makes me think that this whole story is overblown. Did HRC threaten to lower K&S’s rating as a “gay-friendly” workplace? Or urge progressives not to give K&S business? Or the corporate clients? Or did they threaten to give K&S a bad rep among recent law-school graduates? Did you actually use the term McCarthyism to describe this? I should point out that in it’s history, HRC has generally disappointed in the strong-arm department.
In any case, admire Clement all you want but K&S clearly did not want to be associated with defending DOMA, or else they would not have let him go.
April 30, 2011, 1:12 pmDOMA: The Verdict Is In. The Gays Did A Very Bad Thing. | The New Civil Rights Movement says:
[...] The crime was their untoward efforts to pressure King & Spalding to drop the DOMA defense case. The mainstream media has all chosen to weigh in on the evil-doing. Jonathan Adler at the The Volokh Conspiracy was among the first to be brave enough to call it for what is was. It is, I’m sorry to tell you, it is the dawn of The New McCarthyism. [...]
April 30, 2011, 6:51 pm