Tuesday, May 3, 2011

When Is An Oath Not An Oath?

When it's inconvenient to abide by that oath. That was recently demonstrated in a small way when the Eric Holder Department of Justice abandoned the government's position on the Defense of Marriage Act ("DOMA"). But there is a more subtle and far more insidious abandonment of the cause by the private firm that was hired to replace the political DOJ. The raucous left bullied the law firm of King & Spalding into dropping the DOMA defense.

Lawyers are bound by the rules of professional responsibility and legal ethics. Among the foundational rules are the rules regarding abandoning a client and zealous advocacy of the client's cause (within the law and the bounds of professional ethics). Subsequent to taking on a case, abandoning a client after quibbling over the terms of the contract (the "retainer agreement") is within the letter of the law, but violates at least the spirit of the rules of professional responsibility. But that was the justification raised by King & Spalding. In a public statement, K&S chairman Robert Hays said that the firm refused to continue defending DOMA because of "inadequate vetting of the contract."

Clients can be obstreperous and uncooperative, expect lawyers to violate the law and the canons, or demand that lawyers work for free after having agreed to pay. Those are grounds for a firm to remove itself from a case. But there are rules about that as well. A clash between the attorney and the client can be a perfectly legitimate reason to withdraw, after following the rules for doing so. But to do so suddenly, in the middle of litigation, because of outside pressure is both unethical and reprehensible. As advocates, lawyers are to represent their clients diligently despite public opinion and even damage to their personal well-being.

D&S, a large international law firm, took the retainer and likely the case because it was high-profile and would bring the firm publicity. It apparently didn't foresee the criticisms and threats it would receive from private gay advocate groups such as the Human Rights Campaign and big-mouthed ignorant politicians such as Nancy Pelosi. The firm was certainly intelligent enough to recognize that most people don't blame a lawyer for defending an unpopular or even disgusting client or cause. So that only left arguing that the contract was the problem.

The contract wasn't a problem until the groundswell of leftist attacks began. In this case, the client is the government that passed DOMA in the first place. But it was a problem for Human Rights Campaign ("HRC"). Immediately after it became public that K&S had taken on the defense of the Act, Human Rights Campaign announced that it would send informational letters to K&S clients and to top-tier law schools informing them of K&S's decision to "promote discrimination." Of course, K&S would no more have been "promoting discrimination" by representing the government than a criminal defense attorney is "promoting murder" by representing an accused killer. This was a Human Rights Campaign purity test, and K&S was found wanting. This despite the fact that HRC itself had recently found K&S to be 95% "right" on lesbian, gay, bisexual and transgender (LGBT) litigation.

Nancy Pelosi attacked the agreement as a "legal boondoggle that spends half a million dollars of taxpayer money to defend discrimination." Her talking points obviously echo the views of HRC, a major contributor to her political campaigns. And since when does San Fran Nan care about wasting the taxpayer money? DOMA was passed by the same Congress which she once represented as Speaker of the House.

I remind our readers that I have been a critic of DOMA, on entirely different grounds. I believe it violates both federalism and state prerogatives. I believe that marriage is a definition and determination to be made by the individual states, and Congress has no business interfering on either side of the issue. I am hoping that five United States Supreme Court justices will eventually agree with me. But this isn't about taking sides on gay marriage. It's about unethical abandonment of a client.

My favorite [liberal] University of California constitutional law professor Jesse Choper looks at the K&S change-of-heart the same way I do. Says Choper: "If they didn't like the case, they shouldn't have taken it. But having taken the case, the firm had a lawyer's obligation to stick with it." That disposes of both the basics of good legal ethics and the quibbling over the contract. HRC spokesman Fred Sainz unintentionally let the cat out of the bag about political pressure on law firms by announcing: "At the end of the day, I am fairly positive that law firms in the future will think twice before taking on these kinds of engagements because they know we'll be watching."

All lawyers and many knowledgeable laymen know the expression "a chilling effect on the First Amendment." How about the chilling effect on the First and Sixth Amendments? The lawyer's oath specifically addresses that by requiring that an attorney not take outside pressure into account when deciding to take a case. Or more importantly, pursuing it vigorously after having taken it on.

Former Solicitor General under George W. Bush, Paul Clement who joined K&S after leaving government, has resigned from K&S. Clement will take on the defense of DOMA independently. About the K&S decision to drop its client, Clement says: "Representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters. Defending unpopular positions is what we lawyers do." Well, at least one former K&S attorney gets it.

And here's the final irony. President Obama and Attorney General Eric Holder switched sides on DOMA after declaring that the Department of Justice would no longer defend it because, get this, "homosexuals are a politically-powerless minority." That comes as news to me, and apparently to King & Spalding. How about you?


rlaWTX said...

if only I were that politically- powerless...

Tennessee Jed said...

I'm sure that I am missing something here, Hawk. Without being a lawyer, it seems to me your argument (as well as your professor's argument) is obvious and clear. If so, is there a penalty or sanction that could be imposed on them (the firm), and if so, how would one go about making it happen so to speak?

AndrewPrice said...

Frankly, it's always bothered me that DOJ uses outside counsel anyway. They shouldn't be doing that. And when you take on an assignment like that, you better expect to become part of the political process. K&S should stick to their merger work and stay out of politics. . . they're out of their league.

Anonymous said...

rlaWTX: Amen!

Anonymous said...

Tennessee: There are procedures available in every state and the federal jurisdiction to discipline firms that do this sort of thing. BUT, after a complaint is filed by whoever, the action has to be initiated by the affected bar association, and it is for ethical reasons, not legal reasons. K&S is a big, and I mean BIG firm with plenty of money and lots of influence. The same argument ("vetting" the contract) would get a horse laugh if the attorney or firm were small potatoes. Money does talk, and K&S has more than enough.

Anonymous said...

Andrew: In this case, the DOJ simply dropped the matter (i.e. it refused to support the Act of Congress and the will of the people), so Congress had to do the hiring.

K&S has whole departments that deal with this kind of thing, and if their core constituency hadn't scared them, they might have done an admirable job. In fact, it was K&S's choice of the very competent Paul Clement as lead counsel that triggered the gay rights lobby. They knew they had a strong advocate for DOMA facing them, and they brought pressure on the firm to drop the case. Clement refused, and left the firm.

K&S also does a lot of successful pro bono litigation for gay causes. You and I both know that for the big firms, "pro bono" simply means "we'll just charge our rich clients more money to pay for our leftist political causes." Wouldn't it be nice if we could do that?

At least two of K&S's pro bono lawyers were among the al-Qaeda 7 who successfully convinced an unconscious Supreme Court to grant habeas corpus to enemy combatants detained at Guantanamo. That got them appointments to the Holder DOJ.

I agree about DOJ using outside counsel, and that applies equally to Republican and Democratic administrations.

Kosh said...

I guess I am a little slow. So the DOJ hires an outside counsel to defend the DOMA. But now the current administration doesn't want to defend DOMA. Why couldn't they just release the firm from their responsibility rather than play these little Mickey Mouse games? This is also the crap that happens when you try to circumvent the system. How can they just not defend the law of the land, regardless how you feel about it?

Who are they defending the government against?

Anonymous said...

Kosh: The catch is that the administration (executive branch) controls the DOJ, so Holder decided not to defend DOMA. Since Obama and Holder have decided DOMA isn't worth defending, they dumped it.

But it wasn't up to the executive branch to hire outside counsel. DOMA is an act of Congress (the legislative branch), and enough Congress critters decided the law was worth defending, so they hired K&S. This is another example of how different the view of the House is now as against the recently-revised view of the President.

The DOJ abandoned the cause on political grounds. K&S abandoned it because of pressure from the gay lobby. I'm not sure which position is less ethical.

Unlike current Massachusetts governor Deval Patrick, at least Holder didn't switch sides in the middle of the litigation. Patrick was in DOJ as a deputy A.G. on an affirmative action case under Bush I. When Clinton took over, Patrick actually convinced Janet Reno that it was perfectly ethical to drop the defendant government and switch to representing the plaintiff.

Either way, the Democrat lawyers constantly prove their lack of legal ethics.

Kosh said...

Thank you LawHawk. Still confusing but I understand much better. Now I see why you are as angry as you are. Very slimey and weak move by K&S. I was under the false assumption that good lawyers liked that challange of defending something that they may not necessarily support because even the lowest piece of slime deserves his day in court (the classic is defending a mass murderer). This will now embolden groups with political desires to put pressure on a third party rather than face the voters or their representatives.

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