May 4, 2011 5:29 PM
King & Spalding's Reversal of Fortune
Posted by Steven Harper
It was an impossible task. Take a multimillion-dollar-a-year Big Law partner with unambiguously conservative Republican credentials and make him look like a combination of Atticus Finch and Clarence Darrow as he pursues the far right's ideological agenda. Somehow, while working at cross-purposes, Paul Clement and King & Spalding pulled it off. What should have been a nonevent became a major story because the firm said yes to Clement's representation of the House Republican leadership on the Defense of Marriage Act (DOMA) litigation--and then it said no.
But the issues are more complicated than the headlines.
To recap, after the U.S. Department of Justice announced that it would no longer defend DOMA in litigation throughout the country, House Republicans retained former solicitor general Paul Clement and his firm, King & Spalding, to intervene in the cases and run with the baton. The backlash came swiftly. Eleven days after Clement signed the retention agreement, the firm withdrew from the representation and Clement resigned from his firm.
With words befitting the talented advocate that he is, Clement relinquished his lucrative equity partnership saying, "Defending unpopular clients is what lawyers do."
Dutifully, King & Spalding chairman Robert D. Hays fell on his sword in expressing the firm's official nonexplanation for its about-face: "inadequate vetting."
Attorneys across the political spectrum condemned Clement's former firm while praising him for adherence to the maxim that everyone deserves representation. Even Seth Waxman, solicitor general during President Bill Clinton's second term in office, commended Clement's allegiance to the "highest professional and ethical traditions in continuing to represent a client to whom he had committed in this very charged matter."
Let's suspend the hyperbole for a few moments of analysis and reflection.
"They're Not Entitled to Me"
The target audiences for Clement's lofty rhetoric were the media and the public, not the person to whom his resignation letter was addressed, K&S chairman Hays. Clearly, Clement scored a public relations bull's-eye.
He began with the suggestion that his personal "thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as solicitor general." Not quite. The solicitor general must always take the same side--the government's. Attorneys in private practice can say no to taking on a new matter. As Harvard Law professor Alan Dershowitz told my classmates and me 35 years ago: "In our system, everyone is entitled to representation. But that doesn't mean that everyone is entitled to me."
When attorneys wrap themselves in their roles as advocates for unpopular people and positions, it's worth pausing to consider whether such nobility is easier because it coincides with their ideological leanings. Clement urged that "being on the right or wrong side of history is a question for the clients." But whether to represent a client is always a question for the attorney. Would Clement have taken the other side in the DOMA cases?
Clement's new home is Bancroft PLLC, now an eight-lawyer firm that looks like a Republican government-in-waiting. Clement's conservative dots connect easily to his newest employer: Supreme Court clerkship with Justice Scalia, an associate stint in Kenneth W. Starr's appellate group at Kirkland & Ellis, and four years as solicitor general for President George W. Bush. Pursuing a far right rallying cry doesn't look like much of an ideological stretch. There't nothing wrong with that; it's just true.
What Went Awry?
Wholly apart from the issue of proximity between his client's position on DOMA and Clement's personal politics, King & Spalding's missteps created the story. If the firm had simply failed to approve Clement's initial request to take the cases--as big firms often do--no one would have noticed or cared. That's not what happened. Rather, the firm took them on and then changed its mind. This could have played out at any large law firm. This is why.
First, money matters. DOMA was never a pro bono affair for King & Spalding. In the prevailing Big Law model, a revenue dollar is a revenue dollar and new business is new business. Cases and deals generating media attention are especially attractive, in part because they help in The American Lawyer's annual "Best Departments" competition.
The House of Representatives, a high-profile client, agreed to pay a blended rate of $520/hour with taxpayer dollars. Clement charges more than that for his time, but blended means that every lawyer on the cases--including junior associates--bills out at that $520 hourly rate. Although appellate matters are top-heavy, partners typically control staffing to make money on blended rate deals. (A $500,000 cap was subject to negotiated increases.) The cases also offered another win-win possibility: attracting other conservative clients.
Second, someone at King & Spalding underestimated the backlash. I don't know what Hays meant by "inadequate vetting," but partners typically brag to firm colleagues about noteworthy new business as they're trying to land it. Somewhere amid the backslapping, they can lose sight of other considerations that matter. Here, the intense adverse reaction came swiftly, certainly and, apparently, surprisingly. The surprise would have been a byproduct of myopic revenue generation; magical thinking at the outset can assume away all potentially bad consequences.
Third, once a new client matter is approved, firms typically let the partner in charge finalize the details. I don't know whether King & Spalding did that here, but I wonder if anyone at the firm other than Clement read the retention agreement prior to its execution. If so, the implications of silencing an entire national law firm (including staff) must have arisen. A gag provision barred everyone in the firm from engaging "in lobbying or advocacy for or against any legislation (i) that is pending before the [House] Committee…[through January 3, 2013], or (ii) that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body…."
Whose idea was that? Private employers can impose lots of restrictions on employees, but some observers have suggested that this sweeping ban violates state law where King & Spalding has offices, including California and New York. In any event, personnel throughout the firm might have been astonished to discover that, as of April 14, their jobs now required that they forego free speech on personal matters near and dear to many of them. The provision certainly didn't astonish Clement, who signed the agreement on his firm's behalf.
The Road Not Taken
Clement concluded with Judge Griffin Bell's statement that an attorney who undertakes a representation should finish it. But that proposition is far from immutable. Attorneys decide whether to leave clients all the time, but without the underlying morality play that developed here. Examples: A lawyer laterals into a new firm after saying good-bye to clients that would pose a conflict if he brought them along, or a firm simply jettisons an existing client in favor of a more financially promising one. Here, the ink was barely dry on the April 14 agreement before Clement resigned from his firm eleven days later. If he'd chosen to stay, the client would have faced little hardship in transitioning to replacement counsel.
King & Spalding now is the target of harsh critics who say the firm has forsaken the profession's finest traditions by abandoning a client with an unpopular position. Some will distort the issues for political gain, as Virginia's attorney general already has.
Meanwhile, Clement retains a moral high ground that some people have been too quick to give him. Did he consider the gag provision's breadth, scope, or potential enforcement problems? Would he have counseled a client--any client--to agree to it? Imagine the outcry if tobacco companies tried to prevent all employees of their outside law firms from using weekends and evenings to advocate antismoking legislation.
As an outstanding appellate advocate who has been mentioned as a possible U.S. Supreme Court candidate in a Republican administration, Clement knows that final decisions should be based on a complete record that includes all of the evidence. The current judgments identifying the heroes and villains in this saga are premature.
Steven J. Harper is an adjunct professor at Northwestern University. He recently retired as a partner at Kirkland & Ellis, after 30 years in private practice. His blog about the legal profession, The Belly of the Beast, can be found at www.thebellyofthebeast.wordpress.com. A version of the column above was first published on The Belly of the Beast.
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