As I wrote yesterday, the public campaign to force King & Spalding to drop its client, the House of Representatives, on the Defense of Marriage Act case may have opened a Pandora’s box and exposed the gross hypocrisy of those who bristle at any suggestion that some clients are unworthy of representation. We subsequently learned that the Human Rights Campaign is now claiming bragging rights about its role in depriving the House of Representatives of its choice of legal counsel. It spared no effort, even going so far as to contact the law firm’s other clients. The group proclaims, “HRC was in the forefront of putting the pieces in place to bring pressure to bear on the firm.”
Todd Gaziano, the director of the Heritage Foundation’s Center for Legal and Judicial Studies, responded to my inquiry about the campaign to get the law firm to dump the case: “The new legal realists know no fixed principles except the outcomes they desire. To many liberal activists, principles embodied legal ethics rules (or any other code of conduct), such as the rule against abandoning a client once a lawyer accept the representation, are only for conservative suckers, who should be doubly mocked for thinking that neutral principles apply to radical movements.”
But even more disturbing than the left’s unprincipled campaign is what this says about the law firm’s resolve to defend unpopular clients. Maybe chemical companies involved in toxic spill cases will begin to worry about trusting the firm. I mean, couldn’t environmental advocates pull the same gambit? Who wants to take the risk? Perhaps toy companies involved in product liability cases won’t want to take their cases to King & Spalding. After all, will King & Spalding get weak in the knees when the first associate or outside advocate raises a fuss? And then there is the white-collar criminal defense practice. If you’re indicted for insider trading or ripping off shareholders, I’d bet you’d want a law firm that is impervious to public pressure.
A conservative law professor with whom I exchanged e-mails was perturbed by King & Spalding’s conduct. He blames not the leftist advocates but the firm’s management, saying that’s the party that is “truly blameworthy.” He put it succinctly: “Law firms shouldn’t be caving.”
Then there is Benjamin Wittes, one of the senior fellows who signed the Brookings letter that I quoted (in which a number of Brookings scholars defended attorneys representing Guantanamo detainees). He had this to say yesterday:
Sometimes, the politically unpopular client is the House of Representatives, not a Guantanamo detainee. Sometimes, the contested legal questions are not ones related to counterterrorism but involve marriage and equality and tradition. But good counsel is still critical to ensuring that tribunals have access to the best arguments and most rigorous factual presentations before making crucial decisions. When interest groups pressure law firms to drop such representations, they are still demanding adjudications stripped of a full record–or objecting to the right of their opponents to have adjudications at all. And if major law firms will buckle under such political pressures before defending a (rightly, in my view) disfavored federal statute, can anyone really imagine that they will not also abandon other disfavored clients?
It is gratifying that distinguished lawyers from diverse ideological perspectives can agree on this fundamental issue: Lawyers shouldn’t fold like a cheap suitcase when their clients become unpopular, and ostensible defenders of the sanctity of our judicial system shouldn’t become bullies when it comes to the right to representation. As one esteemed lawyer put it: “Let me be clear about this: Lawyers who provide counsel for the unpopular are — and should be treated as what they are — patriots. . . . Lawyers who accept our professional responsibility to protect the rule of law, the right to counsel, and access to our courts — even when this requires defending unpopular positions or clients, deserve the praise and gratitude of all Americans. They also deserve respect. Those who reaffirm our nation’s most essential and enduring values do not deserve to have their own values questioned.” That would be Attorney General Eric Holder.
In short, the left is playing with fire in trying to deprive its political opponents of legal counsel. More important, the lawyers who decided to capitulate have put in jeopardy their own reputations and the guarantee of loyalty that clients have a right to expect from their lawyers. They will all now need to reap what they have sown.