As I suspected, King & Spalding’s decision to dump the House of Representatives as a client in the Defense of Marriage Act case (which triggered the resignation of partner Paul Clement) is not sitting well with many in the legal profession. As I noted earlier, Ben Wittes of Brookings has stepped forward to blast the firm.
Other lawyers who signed Wittes’ previous letter defending the Guantanamo detainees’ lawyers are also speaking out. David Rivkin of Baker and Hostetler e-mailed me to say that he “of course, applaud[s] Paul Clement as acting in the best traditions of the profession and am appalled at King and Spalding’s conduct.” Lee Casey, who also signed the letter told me, “I fully agreed” with Wittes’s take. He said bluntly, “King & Spalding’s behavior is reprehensible, as is that of the ‘activists’ who set out to — unsuccessfully, as it turns out — drive Paul from the case.”
Another lawyer who signed the Gitmo letter spoke out in the Legal Times:
Sidley Austin partner Bradford Berenson, who served as an associate counsel to President George W. Bush, said King & Spalding does not deserve to be punished for filling the vacuum left by the U.S. Department of Justice. “In general, most people feel that lawyers should be free to take on unpopular clients or unpopular causes without fear of retribution, and most law firms would not be well served by shying away from controversy,” Berenson said. “After all, controversy is at the heart of what any litigator is involved in day-to-day.”
He and others compared King & Spalding’s decision to that of lawyers who took on the defense of terrorism suspects detained at Guantanamo Bay, Cuba.
I contacted King & Spalding to request an interview with firm management. I received this response from firm spokesman Les Zuke:
The firm made the [following] statements yesterday. Beyond those, there is nothing we can add.
Robert D. Hays, Jr., the firm’s chairman, today (4/25/11) made the following statement:
“Today the firm filed a motion to withdraw from its engagement to represent the Bipartisan Legal Advisory Group of the House of Representatives on the constitutional issues regarding Section III of the 1996 Defense of Marriage Act. Last week we worked diligently through the process required for withdrawal.
“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.”
Les Zuke, a spokesman for the firm, made the following statement with respect to Paul Clement’s subsequent resignation from the firm:
“We’re sorry to see Paul Clement leave. He’s been a good partner, and we wish him the best.”
But of course there are many relevant issues. I requested answers to the following questions, which Zuke declined to answer:
Were the firm’s clients contacted by outside groups?
What mistake did Mr. Hays make in vetting? Was there a conflict of interest?
Why was the mistake discovered only now?
Ben Wittes of Brookings has harshly criticized the firm — do you have a response?
It seems that the controversy is not going away. In fact, the backlash from the firm’s decision to fire its client may, in the long run, prove to be more damaging to the firm’s reputation and financial standing than if it had showed loyalty to client under public attack.