Chapman University law professor Ron Rotunda is among the top legal ethics experts in the country. The Justice Department consulted with him during the Office of Professional Responsibility’s investigation of Bush-era lawyers. He weighed in today on the King & Spalding matter and the potential involvement of the Coca-Cola company.
He begins by pointing out that the purpose of the gay rights campaign was to damage the House of Representatives’s legal defense. He explained to me this afternoon, “Gay rights groups are taking credit for pressuring King & Spalding, and are pleased that Paul Clement is moving to a small firm without the deep back bench of K & S. That fact, says Jon Davidson, legal director for the gay rights group Lambda Legal, will hurt the House of Representatives.” Certainly, even non-lawyers/bloggers can appreciate that this is not in keeping with our legal tradition and the adversary system of justice. The gay rights group is entitled to the best possible representation of its choice, and so are its opponents. Unlike politics, not everything goes in the law business (or should go, at any rate).
Rotunda then traced the ethical violations at issue here:
So, K &S drops its client like a hot potato, violating the ethics rule that says, once you are in a case, you can’t leave if doing so will have a “material adverse effect on the interest of the client.” ABA Model Rule 1.16(b)(1)
The law firm can refuse to take a client for many reasons, but not for the wrong reason, i.e., the “cause is controversial or the subject of popular disapproval.” Rule 1.2, Comment 5. This firm does take the case and then drops it for a reason that is unethical.
He also contends that “The House of Representatives should investigate (they were the clients whom K & S dumped after all) and find out what happened.” And as other legal experts with whom I have consulted argue, Rotunda says, “If the House investigates and finds out that Coca-Cola did the pressuring, that would be interesting. Coke can’t claim attorney-client privilege because it is not seeking legal advice when it pressures a law firm to drop a client.”
It is not clear that the House will follow up. But it is important for the law firm to come clean and, if it refuses, to have the applicable bar investigate. This started as a political flap, but at bottom it is an issue of legal ethics. The House of Representatives has been harmed, but the legal profession has been sullied.