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April 27, 2011 5:05 PM

Paul Clement's Noisy Withdrawal

Posted by Victor Li

The fallout over Paul Clement's public resignation from King & Spalding as a result of the firm's decision to withdraw from defending the Defense of Marriage Act (DOMA) in federal court continues to build.

The Blog of Legal Times, our sibling publication, reported that a number of former King & Spalding partners have described the firm's vetting process as "thorough." In contrast, firm chairman Robert Hays, Jr., described the vetting process as "inadequate" when he announced King & Spalding's withdrawal. The claim was disputed by Clement.

According to the Blog of Legal Times, the firm typically reviews potential cases through the Business Review Committee, an internal panel within the firm. The use of a committee to vet cases is nothing new and is in place at many firms. According to the former partners, who spoke to the Blog of Legal Times on condition that they not be named, the committee looks for conflicts of interest but also weighs business sensitivities. Example: the firm tries to only represent construction companies and not contractors.

As such, it was a surprise to one former partner that the DOMA case would have made it through the vetting committee. "I don't know how this got through," the partner told the Blog of Legal Times, citing the firm's reputation for supporting gay rights. Another partner theorized that the firm might have been caught off-guard by the reaction of gay-rights groups. "It's a human process, and you can definitely see how they might have missed all the repercussions of it," the partner said. Others have mentioned the oft-cited "gag order" in the contract with the House general counsel as a possibile reason for King & Spalding's withdrawal. The provision would prohibit the firm's partners and employees from "lobbying or advocacy for or against any litigation" that would "alter or amend" DOMA. "If enforced, [the provision] would have violated employees' rights in California and New York, at least," said Jon Davidson, legal director for gay-rights group Lambda Legal.

Meanwhile, House Democrats have weighed in on the contract issue, demanding on Tuesday to be kept in the loop regarding Clement's new contract with the House of Representatives general counsel's office. Clement, who is now a partner at Bancroft, had originally agreed to a "blended rate" of $500 an hour for a maximum fee of $500,000. “If a new contract is to be signed, we are requesting that all members of the Committee on House Administration have a full opportunity to review and raise questions about its provisions,” Democratic Reps. Robert Brady (PA), Zoe Lofgren (CA) and Charles Gonzalez (TX) wrote in a letter to Speaker of the House John Boehner. Additionally, the authors asked that the House Ethics Committee review the lobbying provisions in any new contract.

Ultimately, the one person who's been largely immune from criticism has been Clement himself. Politicians on both sides of the aisle have praised him for his decision to leave King & Spalding and fulfill his commitment to defend DOMA. The Blog of Legal Times reports that Attorney General Eric Holder defended Clement's decision, calling him a "great lawyer" and compared the criticism he received upon taking the case to the reception current Justice Department attorneys received when they defended Guantanamo detainees while in private practice. Additionally, Administration Committee chairman Dan Lungren (R-CA) released a statement praising Clement's "unwavering commitment to his clients and his dedication to uphold the law — qualities that appear to be inconsequential at King & Spalding, where politics and profit now appear to come first."

And who said bipartisanship was dead?

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