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Right Turn
Posted at 04:06 PM ET, 04/26/2011

The King and Spalding plot thickens

Greg Sargent, who helped get the ball rolling on the King and Spalding story with a revealing interview (an exquisite example of giving an interviewee enough rope to hang himself), gets the Human Rights Campaign to double down on its boast that it managed to deprive its political opponent of counsel.

A couple of notes on Greg’s post, however, are in order. First declining a case, as an HRC spokesman suggested, is not the same, not remotely, as dumping a client with whom you have already entered into an attorney-client relationship and is entitled to your undivided loyalty. And second, this isn’t a conservative issue.

To the contrary, some of the most intense criticism is coming from Democrats. Ben Wittes of the liberal Brookings Institution was among the first to roundly criticize King and Spalding. (By e-mail he reminds me that his original letter on counsel for Gitmo detainees was not written on behalf of his think tank, but a number of highly respected moderate and conservative legal figures.) Wittes is back at it today, noting that two prominent liberals, including Bill Clinton’s former solicitor general, have gone after King. Wittes writes:

It is very important in situations like this for prominent members of the bar of the opposite party, ideology, and perceived position on the specific issues at hand to take strong and public stands in support of the right of unpopular clients to vigorous representation and for the value to our system of attorneys’ undertaking such representations. For this reason, I was heartened this morning to see National Public Radio reporting these comments from Seth Waxman and Steve Gillers on the situation that developed yesterday between Paul Clement and King & Spalding:

And more attorneys are weighing in. University of Minnesota law professor and legal ethics guru Richard Painter e-mailed me, dryly observing, “And now that they have spare time on their hands, they can take on a Gitmo detainee, another accused terrorist or some other client that is less controversial than a committee of the United States House of Representatives.” In a more serious vein he explains, “K&S truly made a mess of this one”:

Once they accepted the client they had an obligation to follow through and not to abandon the client under pressure. The fact that they may not have harmed the client — and thus complied with the minimum requirements of the ethics rules — is no excuse for walking away from the client. The fact that they did so under pressure from outside makes it that much worse.

The bottom line is that this makes the firm look disorganized and weak. If abandoning the client was at all linked to worries about recruiting law school graduates in this market where many outstanding students are still looking for jobs, that makes the firm look that much weaker. Clients who pay top dollar for litigators from top firms want strength and commitment, not the minimum standard of client protection required under ethics rules.

Law students who have a choice also want to work for firms that choose clients carefully, negotiate retainer agreements carefully, and stand by their clients. The intelligent students also understand that the views of the client are not always those of the lawyer and that the views of the client, particularly if well known at the time of retainer, are not grounds for resigning from the representation.

Many of K&S’s clients are large corporations and large corporations are unpopular in this day and age, particularly on law school campuses. If I were the general counsel at one of those corporate clients, I would be revisiting the terms of the retainer or looking for another law firm.

But the plot now thickens. Some liberal blogs are reporting that another King and Spalding client, Coca-Cola, was instrumental in pressuring the firm to drop the DOMA case. I want to be very clear: This is a very, very serious allegation and before reporting on this, any journalist should try to confirm whether the accusation is true. (I have e-mailed Coke’s general counsel and have yet to receive a response.)

I’m not going to weigh in, absent facts, on whether “Coke did it,” but it is important to understand the severity of the accusation. Professor Painter again:

And if this is true , that Coca Cola called to request that they withdraw, then their conduct is truly outrageous. This is a clear conflict of interest when one client dictates the representation — or the discontinuance of representation — of another.

The House should demand an answer — did Coke call and what did they say?

And they should get an answer now.

First, this was a communication that occurred during the prior representation and concerns the subject matter of the prior representation, so K&S has a duty to disclose it to the client. See ABA Model Rule 1.4.

Second, this is not a privileged communication by Coke because it was not made for the purpose of seeking legal advice — or assessing any possible conflict with K&S’s representation of Coke — but to interfere with the representation of another client.

In sum, this is one giant mess entirely of King and Spalding’s making. I imagine the message to other lawyers will be the exact opposite of what HRC intended: Namely, you will be vilified in the legal community and put your relationship with clients at risk if you bend to the will of noisy activists. Actually, if that is the result, it would be a fine outcome.

UPDATE (4:42 p.m.): Holy cow. Attorney General Eric Holder defends Paul Clement and compares HRC to those who went after the lawyers who represented Gitmo detainees. I think that’s pretty much curtains for King & Spalding’s PR effort.

By  |  04:06 PM ET, 04/26/2011

 
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