Law firm backs out of DOMA defense, partner resigns in protest

posted at 1:35 pm on April 25, 2011 by Ed Morrissey

After the White House abandoned the Defense of Marriage Act (DOMA),  the House of Representatives under Speaker John Boehner decided to defend the law and hired an Atlanta law firm, King & Spalding, to represent the government in the appeals.  Activists opposed to DOMA vehemently protested the law firm’s decision to take the case, and today King & Spalding dropped the case:

The Atlanta law firm King & Spalding on Monday filed a motion to withdraw from its participation in defending the Defense of Marriage Act, prompting the immediate resignation of high-profile partner Paul Clement.

The law firm had come under fire from gay rights groups when partner Clement agreed to defend the law for Republican leaders in the U.S. House of Representatives. The act defines marriage as only a union between a man and a woman.

“Last week we worked diligently through the process required for withdrawal,” Robert D. Hays Jr., the firm’s chairman said.  “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.”

Clement, the head of King & Spalding’s national appellate practice, was to be paid $520 an hour for his representation. He once served as U.S. solicitor general for President George W. Bush.  The Obama administration has said it will no longer defend the law in court.

As noted, Clement resigned from the firm after the decision, and he wasn’t quiet at all about why he left:

“Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law,” Clement continues.  “Much has been said about being on the wrong side of history.  But being on the right or wrong side on the merits is a question for clients.  When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.”

In his resignation letter, Clement also takes a direct shot at Hays, the firm’s chairman, who earlier today said through a spokesman that “the process used for vetting this engagement was inadequate” — that is, that King & Spalding had not sufficiently looked into the issue before taking the case. “I would never have undertaken this matter unless I believed I had the full backing of the firm,” Clement writes.  “I recognized from the outset that this statute [DOMA] implicates very sensitive issues that prompt strong views on both sides.”

“If there were problems with the firms’ vetting process,” Clement says, “we should fix the vetting process, not drop the representation.”

When attorneys represent clients who murder, molest children, or embezzle billions, those who criticize the lawyers usually get lectured on the right to representation for clients and how that serves a higher purpose.  Of course, those are criminal defendants at risk of their lives or a substantial chunk thereof from the government.  However, the same defense routinely gets applied to personal-injury attorneys and class-action warriors.  The same Left that chased King & Spalding, for instance, also helped put John Edwards on the Democratic ticket in 2004 and nearly did it again in 2008.

I have no trouble with criticizing the choice of attorneys in defending the creeps in specific cases, as well as having no trouble with the general defenses of those decisions.  Attorneys get hired to represent clients in court, and while individual attorneys are open to criticism for the cases they take, the real issue is usually the cases themselves rather than the attorneys involved.  The usual “vetting process” is whether the client can pay the bill, and the House had agreed to a fee of $520 an hour.  I’m no lawyer, but that sounds like pretty good money to me, and it’s curious that K&S has suddenly discovered a vetting problem with a client like the House of Representatives and a fee that solid.  It sounds a lot more like intimidation than a process-oriented decision.

Plenty of other attorneys and firms will be happy to take the case and the money, and to show just a wee bit more testicular fortitude than Robert D. Hays, Jr.


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