King & Spalding's Self-Made Mess

Big day in Big Law and Gay Law -- not only did King & Spalding end their firm representation of the "Bipartisan Legal Advisory Group of the House of Representatives" (BLAGHOR??) in defending the (indefensible) Defense of Marriage Act, but Paul Clement, the King & Spalding partner who dragged the firm into it, resigned as a partner in the firm only to immediately join the ultra-conservative DC Bancroft law firm. Better fit, all in all.

Not to worry, if you're a fan of DOMA, it will still have a good lawyer. Clement has taken the case over to Bancroft. Meanwhile King & Spalding has a public relations problem to deal with. Purging Clement and the defense of DOMA from its docket does not solve its reputational problem. Robert D. Hays, Jr., chairman of King & Spalding, said in a statement to Metro Weekly:

In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.

I'm sorry, but that's a pretty sorry explanation for the big mistake the firm made in taking on this client -- BLAGHOR. Clement has had the better part of the argument here, framing the dispute as one of taking on an unpopular client/cause. In his resignation letter he states: "a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters." He effectively makes the case that the rule of law and principled politics require the effective assistance of counsel no matter the unpopularity of the cause -- "When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism." What left-cause touting person couldn't agree with that?

In response to this all King & Spalding has to say is "the process used for vetting this engagement was inadequate"? Please.

So here's my bottom line: the representation isn't my core concern. After all this is King & Spaldling, a corporate law firm not a public interest law non-profit. Their clients include "more than 200 pharmaceutical, biotechnology, and medical device manufacturers," and "public companies ... in ... healthcare, telecommunications, real estate, energy, technology, financial services, manufacturing, retail and consumer products," among other typical corporate, private interest, clients.

What should concern us is not the substance but the terms of the agreement to defend DOMA on behalf of the conservatives in Congress. The firm, not just Clement, agreed to a representation agreement that included the language:

partners and employees ... will not engage in lobbying or advocacy for or against any legislation ... that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement.

When you sign up to work at a firm such as King & Spalding of course the firm will take on clients and make arguments in their representations that you may not not agree with. But taking on a client who insists, as a condition of the representation, that every employee of the firm sign up for the values of the client and not take positions contrary to the ideological viewpoint of the client -- both in their work for the firm (which ethical rules may already require) and in their off the job advocacy work, is the problem. This kind of gag clause is a problem, no matter the political slant of the client's politics.

The lawyers, paralegals, secretaries, mail room or cleaning staff staff of a large law firm should not have to surrender their off the clock values and advocacy when the firm takes on a highly ideological client.

So bottom line: King & Spalding should be in the dog house not for Paul Clement choosing to defend DOMA on behalf of conservative members of the House of Representatives but for agreeing to terms of that defense that insist that everyone else in the firm sign up for that representation as well.

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