The law firm of King & Spalding signed a contract to defend the Defense of Marriage Act in court, then dumped its client — the House of Representatives — and refused to handle the case after liberal gay advocacy groups protested. I myself am a critic of DOMA (see this article listing some of my policy objections to DOMA), but I think this sets a terrible precedent. As Jennifer Rubin notes, the moral of this story is that “the left decides who gets lawyers.”
No one forced King & Spalding to take the case, but having agreed to take it, it had no right to just dump the client in response to political pressure. The law firm should have heeded the words of its former partner, Griffin Bell (who was attorney general in the Carter Administration, and a judge on the Fifth Circuit Court of Appeals). He noted, “You are not required to take every matter that is presented to you, but having assumed a representation, it becomes your duty to finish the representation.”
King & Spalding has chosen to undermine the attorney-client relationship to appease liberal pressure groups, and perhaps also to curry favor with liberal lawyers who are more concerned about ideology than ethics (lawyers are much more liberal than the average American. Bill Clinton beat the elder Bush in 1992 in a fairly close race, but he won lopsidedly among lawyers, getting nearly twice as many votes among lawyers as Bush did. Both DOMA and the House’s GOP leaders are unpopular among lawyers).
While even some liberal lawyers are aghast at this breach of legal ethics, others welcome it for ideological reasons, saying it sets a precedent that law firms won’t defend discrimination. But of course, law firms defend institutions accused of discrimination all the time. If they didn’t, no lawyer would be available to debunk false allegations of discrimination.
Law firms also routinely defend even policies that are admittedly discriminatory, based on arguments that those policies fall within exceptions to the civil-rights laws. (However misguided gay-marriage bans may be, there are plausible arguments that they are constitutional).
And in reality, liberal lawyers like discrimination when the discrimination is against whites, Asians, or males in the name of “diversity.” The San Francisco Bar Association actually gave Drucilla Rainey an award for her unsuccessful efforts to thwart California’s Proposition 209, an anti-discrimination measure that was upheld by a federal appeals court in 1997. (It banned racial preferences in government contracts and state college admissions, which had been used to keep higher-scoring Asian and white students out of California public universities in favor of lower-scoring black and Hispanic students.) And the law firm that successfully challenged the University of Michigan’s undergraduate affirmative-action admissions policy in Gratz v. Bollinger (the Supreme Court struck it down as a violation of the Constitution’s Equal Protection Clause in a 6-to-3 vote) was barred from a career jobs fair by a lawyers’ group because of its role in bringing that lawsuit.
If a lawyer defends a cause favored by liberals — like terrorists at Guantanamo — the lawyer gets lionized by liberals, even if the client is guilty as charged. (Seth Waxman got an award from a bar association for representing a man who molested and killed two boys). And anyone who criticizes such representation gets lectured by liberal lawyers and newspapers that even the most unpopular person is entitled to legal representation.
But if a lawyer defends a cause opposed by liberals — like defending DOMA — the leaders of the bar associations (almost invariably liberals themselves) are deafeningly silent when that lawyer is attacked, and those liberal lawyers do not protest at all when that lawyer’s law firm dumps the conservative client in response to political pressure.
Ironically, although it has presumably antagonized House leaders, the firm continues to boast to potential clients (whom it must view as suckers) of its influence with House leaders of both parties.
The firm must assume that its corporate clients, many of whom have themselves been sued in lawsuits that resulted in lots of bad and hostile press (such as high-profile discrimination lawsuits), don’t care if it dumps clients when the going gets tough, or won’t even notice that it just did that. Only time will tell whether that’s true.
A National Review staffer suggests that one of the law firm’s clients, Coca Cola, pushed it to stop defending DOMA.
Initially, this might seem like a mystery (does Coke really want to discourage legal representation of institutions that are being sued, as it often is?). But only until you realize that decisions about what law firm to hire aren’t usually made by a company’s CEO (who is often a moderate Republican) but rather its general counsel (who is usually a liberal, as lawyers tend to be). To many corporate general counsels, liberal axioms like “diversity” and LGBT inclusiveness are akin to their religion. They may well be willing to even sacrifice shareholders’ interests for that “religion.”
