A few years after the 1995 acquittal of O.J. Simpson on two counts of murder, I had breakfast with his lawyer, Johnnie Cochran, at the Regency in New York. The nation was still reeling over the stunning verdict that let a man go free who many Americans (white and black, truth be told) believed was guilty of murder.
So, I used that opportunity to ask Cochran a simple question along this line: “What do you say to people who say you helped a man get away with murder?” His answer was instructive and would stay with me.
Cochran told me that Simpson was his client. It didn’t matter whether he thought Simpson was guilty or innocent. It mattered whether he could faithfully represent and defend his client in court. That is the foundation of the lawyer’s creed.
Cochran brought up the example of his co-counsel Robert Shapiro as an example of what not to do. At the time, there was a dust-up in which Shapiro appeared to put some daylight between himself and Simpson. Cochran informed me that in the legal community that is the height of unprofessionalism.
I regale you with this story because of the anger now swirling around King and Spalding over its decision to drop its defense of the so-called Defense of Marriage Act (DOMA). From a policy perspective, the decision was the right one. House Speaker John Boehner (R-Ohio) has more pressing things to do — debt, deficits and “Where are the jobs,” Mr. Speaker? — than prevent a gay couple from the joys of filing joint tax returns and availing themselves of the other rights and responsibilities that accrue to federal recognition.
From the standpoint of legal principle, however, Paul Clement’s decision to bolt for Bancroft PLLC was the right one:
Instead, I resign out of the firmly-held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. 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.
I don’t like one bit that time and taxpayer money are being spent to defend the indefensible. Yet, I respect Clement’s willingness to hold principle high above pressure to ensure the statute gets a fair — and hopefully losing — hearing in court. We might not like what lawyers do and what Clement did in particular. But ask yourself this question: Would you want to be represented in any legal preceding by someone who had shown a willingness to throw you under the bus? I sure wouldn’t.