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Lessons from King & Spalding

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Our good friend Kerry Eleveld will be blogging with us from time to time. This is her first essay for us, about the DOMA brief debacle of the past week (we're still getting Kerry set up with her own account, so for now I'm posting her piece for her).

No one escaped the imbroglio that ensued this week when King & Spalding, a mammoth law firm with 800-plus lawyers and 16 offices, withdrew its commitment to defend the Defense of Marriage Act on behalf of the U.S. House of Representatives.

The firm took an immediate hit from most legal observers who viewed dropping the case as tantamount to legal blasphemy. LGBT advocacy groups, ours included, found themselves playing defense after being criticized for blasting the law firm for taking the case. And House Republicans suffered a two-fer: First for the hypocrisy of retaining an outside law firm for $520 an hour (up to $500,000) while they preach fiscal discipline; then enduring the embarrassment of watching that firm breach the contract likely due to the backlash of defending a discriminatory law that many, including President Barack Obama, deem unconstitutional.

Untangling the rights and wrongs in this situation is impossibly confounding, and reasonable people can and have disagreed to be sure. But let’s start where most legal eagles concur: King & Spalding did not have to accept the case, and DOMA, which is notably a law and not a person, does not have a right to representation.

“King & Spalding had no particular ethical obligation to take the case,” says Prof. Geoffrey Stone, a highly respected constitutional law scholar from the University of Chicago.

But like most lawyers, including Attorney General Eric Holder this week, Stone rejects the idea that King & Spalding or Paul Clement, the partner in the firm who agreed to serve as lead counsel, should be demonized for taking the case.

“When a lawyer defends a client or agrees to represent a client, even though they’re making a choice, they’re also fulfilling their responsibilities in the profession,” says Stone, who personally believes that DOMA is unconstitutional and has made the case publicly.

And here already, comes a point of divergence. Monroe Freedman, a leading legal ethics scholar and professor at Hofstra Law School, believes that both the firm and Clement came down on the wrong side of morality when they accepted the case.

Outside of certain criminal proceedings, Freedman says, “There’s absolutely no doubt that a lawyer has complete discretion to take or not to take any particular client. For that reason, it’s my view that, that decision -- whether to take a client -- is the most important point of moral decision making for the lawyer.

“And therefore, in my view, it was immoral for Clement and for King & Spalding to agree to defend DOMA. That is my personal moral judgment,” Freedman says, adding, “others would disagree. But I feel very strongly that defending DOMA is itself an immoral act.”

However, having agreed to represent their client, Freedman adds, “It was at that point unethical for them to pull out. I’m not talking about immoral – it may have been the moral thing to do – but ethically speaking, it was wrong to embarrass the client that way publicly.” Clement, a former U.S. solicitor general under President George W. Bush, resigned from King & Spalding over his firm’s decision to drop the case.

Insofar as ethics are concerned, Freedman’s sentiments echo those of almost every legal expert around.

Exactly why the firm dropped the case is still a bit of a mystery, but LGBT advocacy organizations came out of the box swinging just as soon as the contract went public. The president of Equality Matters, Richard Socarides, appeared on MSNBC’s Hardball saying, “[T]his very prominent national law firm has taken on the defense of this horrific law, and we think it’s deplorable.” And the Human Rights Campaign reportedly contacted large clients of King & Spalding as well as LGBT student groups at top law firms to notify them of the firm’s plan to defend the statute.

This, Stone believes, was a mistake.

“To condemn a lawyer for representing a client is a problematic attack on the general responsibility of lawyers,” he says. “Third parties shouldn’t be in the business of excoriating lawyers for representing unpopular clients.”

Stone’s sentiments reflect those of most in the legal profession. He cites cases like the American Civil Liberties Union (ACLU) defending the free speech of neo-Nazis in Skokie, Illinois, during the late 70s, and lawyers who represented communists during the McCarthy era.

“The basic principle here is one that gay groups should be appreciative of,” he says, noting that lawyers have also historically taken LGBT cases even when it wasn’t particularly popular.

Stone advances an important judicial ideal here, but it’s also an unavoidable American truth that, at any given moment, the politics and legalities of a controversial issue like DOMA are often working their way through each system simultaneously. In other words, the case isn’t playing out in a vacuum and, as much as the courts are supposed to be insulated from the atmospherics surrounding an issue, those elements inevitably impact the legal treatment those cases receive.

For that reason, I believe it would have been a mistake for advocates to forfeit the opportunity to make known their views about King & Spalding’s representation. Letting the moment pass without objection would have been a missed opportunity to send a political message, and advocates shouldn’t be expected to approach the legal system the way a lawyer would. We quite simply have different interests at stake – theirs is to preserve the sanctity of the legal system, and ours is to advance the cause of freedom for lesbian, gay, bisexual, and transgender Americans.

Indeed, a New York Times op-ed noted on Friday the cumulative effect of such advocacy on the 2003 Lawrence v. Texas Supreme Court case that ultimately overturned anti-sodomy laws nationwide.

“The cumulative effect of decades of work by gay-rights advocates was that the best firms and many of the best lawyers were unwilling to defend sodomy laws on constitutional, let alone policy, grounds. The court agreed, holding in Lawrence that such laws demeaned the very existence of gay people.”

In some ways, the fact that King & Spalding dropped the case is a fascinating point of differentiation with the other examples Stone mentioned. Though the firm cited an inadequate vetting process as their reason for backing out, it’s also plausible that they weren’t nearly as ideologically committed to defending DOMA as other attorneys were to defending the First Amendment rights of neo-Nazis or communists during the McCarthy era.

The other interesting part of this equation was a clause in the contract between the House of Representatives General Counsel and the firm stipulating that no employee of King & Spalding engage in any effort to “alter or amend” the Defense of Marriage Act – in other words, entirely restricting all employees from engaging in public discourse about this statute.

While it’s standard practice for the attorneys in a firm to forfeit their right to take any action that might harm the best interests of their client, Jenny Pizer, legal director of the LGBT advocacy organization The Williams Institute, thinks it’s particularly problematic for the government to contractually restrict the First Amendment rights of every employee -- from the person working in the mail room all the way to the lead counsel of the case.

Given the way the contract is written, the mail room clerk would, for instance, be prohibited from writing a letter to their Congressperson taking a position on the statute. Pizer says it may be constitutional, but it seems like an “inappropriate and disturbing” overreach for the government to make such a sweeping requirement of all King & Spalding employees.

“In most instances, you’re talking about a private litigant – not the government using taxpayer dollars to coerce citizens not to petition their own government to change the laws,” she explains. “That’s starting to have flavors of a totalitarian state – that’s hyperbole, but that’s why it has such an alarming taste to it.”

But Freedman believes that clause in the contract is par for the course. It’s not always spelled out so plainly or broadly, he acknowledges, but it’s an understood commitment by any firm that accepts a client.

“Even if that clause were not in there with the apparent breadth it has, in effect that would be part of the retainer agreement because of the ethical rules,” Freedman says.

If there’s one truth that can be gleaned from the DOMA fallout this week, it’s that judging the tenor of issues related to the fair and equal treatment of LGBT Americans is a particularly precarious endeavor at the moment. Though no one has established the exact the reasoning behind King & Spalding’s 180, many believe they simply underestimated the backlash of taking the case.

“There is speculation -- and it’s where I would put my money if I had to -- that they were surprised to find that one or more of their major clients disapproved of them taking on this retainer,” says Freedman, referring to clients such as General Electric and Coke.

At the end of the week, King & Spalding may be just one in a long line of political and legal actors who find that they missed their mark on a position that might have seemed perfectly sound just a year ago. Welcome to vertigo.
Kerry Eleveld works for Equality Matters and was the Washington Correspondent for The Advocate for the first two years of the Obama administration

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