April 25, 2011 3:26 PM

King & Spalding Quits DOMA Case, Paul Clement Quits King & Spalding

Posted by Victor Li

King & Spalding has dropped its representation of the House of Representatives in defending section 3 of the Defense of Marriage Act (DOMA) just one week after announcing its participation. In so doing, the firm now has lost former solicitor general Paul Clement, the partner who had agreed to lead the charge.

According to The Blog of Legal Times, a sibling publication, King & Spalding filed papers to withdraw from its representation of the House of Representatives on the heated DOMA issue on Monday. The move comes after King & Spalding faced severe backlash and criticism over its decision to represent the U.S. House in same-sex marriage litigation. The firm, which had agreed to a "blended rate" of $520 an hour, was criticized by various gay rights groups, including the Human Rights Campaign, which was spearheading an effort to inform King & Spalding's clients and recruits about the firm's stance on gay marriage. Additionally, the HRC was set to demonstrate outside King & Spalding's Washington, D.C., office on Tuesday (the event has since been canceled).

In a statement, firm chairman Robert Hays, Jr., accepted responsibility, saying: "In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate." Hays also revealed that "last week we worked diligently through the process required for withdrawal." The contract with the Bipartisan Legal Advisory Group of the House of Representatives, a standing body in the House headed by Speaker John Boehner, had included a provision prohibiting King & Spalding partners and employees from engaging in "lobbying or advocacy for or against any litigation" that would "alter or amend" DOMA.

However, as the Blog of Legal Times reports, the firm's decision to end its weeklong representation of the group of Republican representatives did not sit well with Clement. Within hours of the firm's announcement, the former solicitor general circulated a letter of resignation from the firm and said he would be taking a job with Bancroft, a small Washington, D.C.-based practice whose partners include former Bush administration attorneys Viet Dinh and H. Christopher Bartolomucci.

Citing dissatisfaction with his firm's abrupt about-face, Clement promised to stay on the case. In the letter, Clement also criticized his former firm for bowing to public pressure and forsaking its professional obligations as attorneys. "I resign out of the firmly held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters," Clement wrote. "When it comes to lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism." Clement also claimed he never would have agreed to take the case if he thought he did not have the full backing of King & Spalding, and that any problems in the vetting process should have been addressed separately, rather than taking the extraordinary step of dropping the case.

Ultimately, Clement said that "having undertaken the representation, I believe there is no honorable course for me but to complete it," and invoked former King & Spalding partner, Judge Griffin Bell, who once spoke about an attorney's professional obligation to complete the representation of a client. "I have immense fondness for my colleagues and the law firm," wrote Clement. "But in this instance, my loyalty to the client and respect for the profession must come first."

Clement's decision to stay on the case could assuage concerns from the plaintiffs that finding another attorney could cause yet another delay in the case. In a letter to Magistrate Judge James C. Francis of the Southern District of New York, Roberta Kaplan, a Paul Weiss partner who is representing 81-year old Edith Windsor, who is challenging the constitutionality of Section 3 of DOMA in Manhattan federal court, pressed the court to establish a date for lawyers defending DOMA to appear in advance of a status conference currently scheduled for May 9. "As Your Honor knows, and as we have repeatedly and consistently stated, we filed this case last November, our client is 81-years old and is not in good health," Kaplan wrote. "Indeed, given the attached letter available on the Internet from Mr. Clement, this should
not present a problem since Mr. Clement has stated his intention to remain as counsel in
this case at his new law firm, Bancroft, PLLC."

A spokesperson for the Gay & Lesbian Advocates & Defenders (GLAD), which is representing the plaintiffs in the Connecticut litigation, also voiced concern over the potential for delay in this case, stating "our concern is for our clients, who have ongoing harms from this case, and we would like to see this litigation move forward for their sake."

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