Virginia Attorney General Ken Cuccinelli has severed his office’s relationship with King & Spalding after the firm abandoned its representation of the House of Representatives in the challenge to the Defense of Marriage Act (DOMA). In my view, Cuccinelli is right to do so. While I have long been critic of DOMA, I have been highly critical of the firm’s handling of the case and dumping a client under pressure. Paul Clement has now left the firm and will represent the House of Representatives as part of Bancroft PLLC.
Cuccinelli insisted that he was taking the action “so that there is no chance that one of my legal clients will be put in the embarrassing and difficult situation like the client you walked away from, the House of Representatives.” While many have said that the act is retaliatory, he has a point. The firm has shown itself as willing to abandon a client when association with a case becomes inconvenient. If a large and profitable firm like King and Spalding will yield to such pressure, what hope is there for smaller firms?
King & Spalding insisted that it had failed to properly “vet” the case. However, critics have pointed to a campaign by various groups to pressure the firm’s large clients.
I have long supported same-sex marriage. Indeed, I have long argued for a universal civil union standard for states (leaving “marriage” definitions to the respective faiths of citizens. I also criticized the Obama Administration for fighting same-sex marriage in court — on the same grounds as the Bush Administration before it finally decided to decline further defense.
Yet, I believe that Congress is entitled to have someone defend the law in court. Indeed, it is best for the system to have this issue fully argued by talented counsel on both sides. What is most disturbing is how short-sighted the campaign against the firm was for some liberal groups. It is equally likely that conservative groups will seek to pressure firms over their representation on gay and lesbian rights.
Trying to deny counsel to the other side of a dispute is the lowest form of advocacy. Such campaigns taint the cause of equal rights and leave an impression that advocates lack confidence that they can prevail on the law alone.
As for King & Spalding, the firm has undermined the entire bar with its decision to abandon this client. No one forced the firm to take the case. The time to review the matter is before making that decision. I am sure such an important case was considered by many at the firm. Now, other powerful clients will cite this decision in seeking to pressure firms to abandon clients that they oppose. While there are greater protections for clients in the criminal law system, the firm abandoned not just a client but core assurance given all clients that we will stand by them regardless of political pressure.