Law firm King & Spalding announced Monday that it would no longer represent congressional Republicans regarding the constitutionality of the Defense of Marriage Act (DOMA), the controversial 1996 legislation that defines marriage as being only between a man and a woman.. In response, the firm’s chief appellate lawyer, Paul Clement, who was handling the case, resigned from the firm.
In February, the Obama administration announced that its Justice Department would refuse to defend DOMA in a number of lawsuits, an unusual, controversial and troubling decision. It doesn’t take a lot of imagination to conceive of other federal laws another administration might decide to render dead letters by non-defense despite being duly passed by the people’s representatives. A government has an obligation to duly execute its laws or repeal them. The policy of the Administration regarding DOMA raised issues of governmental integrity quite separate from the provisions of the law itself.
Into the breach created by the Justice Department’s refusal to carry out its duty to defend the laws stepped the Republican House of Representatives, retaining King & Spalding and Clement, widely regarded as one of the best appellate attorney in the nation, to argue for the constitutionality of DOMA in several pending cases. But King & Spaulding, which has a reputation of supporting diversity and the gay community, immediately came under fire by same sex marriage advocates, including the Human Rights Campaign, a national gay-rights organization that announced plans to call for clients, recruits and the public to pressure the law firm to drop the cases.
That is an unethical, un-American strategy. Both sides in legitimate litigation deserve the best representation they can find, and representing unpopular causes and clients is a core duty of the legal profession. The Human Rights Campaign is not willing to test its position on the merits of its arguments, preferring to impede its adversaries’ right to present its legal case. Did King & Spalding capitulate to these unethical tactics? It is impossible to say for certain. HRC and its allies had threatened to organize boycotts of King & Spalding clients, who were signalling their unhappiness with the firm’s choice of clients. Many have speculated that the firm feared that the case would hamper its recruitment of young lawyers, though I would question whether lawyers who do not believe in the core principles of legal representation are worth recruiting. When law firm partners in various law firms came under fire ( from a Deputy Secretary of Defense, among others) for representing terrorist detainees at Gitmo, the profession strongly and indignantly backed the lawyers, reminding the public and the media that an attorney does not signal endorsement or approval of the views or acts of clients by representing them, but rather supports the rule of law by allowing the adversary system to function. Bizarre, is it not? Representing alleged terrorists is honorable, and defending duly passed legislation of the United States is not. We live in strange times indeed.
There were other reasons for the firm to withdraw: the House had insisted on a retainer agreement that put extraordinary limitations on the firm’s activities, and it could have reasonably concluded that agreeing to such terms was a mistake. Clement, however, took a courageous path, leaving the firm and vowing to represent an unpopular cause to its conclusion, as he had committed to do. In his resignation letter, Clement stated that he was leaving not because of any special devotion to the merits of the case, but because
“…defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”
Professing regret at having to leave a firm and colleagues he admires, Clement closes by saying that his loyalty to his client and respect for the profession must come first.
Writing at the Volokh Conspiracy, Jonathan Adler summed up the correctness of Clement’s act:
“When some conservatives attacked private law firms and threatened retaliation for defending accused terrorists, the bar responded with outrage — and rightfully so….At the time, we heard all the same arguments we are hearing now from Human Rights Campaign 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…”
Indeed. Clement has upheld the ethical principles—loyalty, zeal, independence, integrity, resistance to outside interest and influences—that form the bedrock of the legal profession.