The national press has reported an interesting ethical conundrum
concerning the 800-member, 126-year-old Atlanta law firm of King &
Spaulding, and its Supreme Court advocate Paul Clement, over the firm’s
dropping a prestigious and lucrative client — the House of
Representatives, no less.
The House hired Clement, a former solicitor general, to defend the constitutionality of the 1996 Defense of Marriage Act (DOMA), which denies federal rights to same-sex marriage partners. After human-rights groups criticized the firm for its role in defending the federal anti-gay marriage law, the firm dropped its client. Clement left the firm, stating that law firms should not desert clients who are unpopular. “Defending unpopular positions is what lawyers do,” he instructed. But not always.
Several interesting issues are raised by this incident.
Law firms have no obligation to take any client, unless it is a rare court-assigned criminal case.
Once they do take on a client (in all other cases), they should not abandon them without a good reason. Did Spaulding have a good reason?
The Spaulding-Clement conflict raises one confounding issue (I admit that it is a subject about which most attorneys disagree with me). I think it is appropriate that attorneys be associated with the cases they handle, especially the celebrated ones. Lawyers usually take cases for the money they make or the causes they espouse. Why disguise what they do by claiming that they represent clients because it is their obligation to take cases? It rarely is. Many people don’t have lawyers because they can’t afford them, and lawyers are content to leave it at that. Apparently, there is no obligation to take poor clients!
Congress retained the Spaulding firm to represent it in a contentious case. Clement probably took the DOMA case because he was associated with the issue, an advocate in favor of the position he and his client advanced. The firm readily accepted the case, probably because Congress is a high-visibility, well-paid client. Then the firm dropped it, succumbing to pressures from advocacy groups.
In my opinion, it shouldn’t have dropped the case for ideological reasons after taking on the controversial client. But before accepting the client, it had every right to take or not take that case, or any case, for its political coloration. Labor lawyers are properly known as management lawyers or union lawyers. Criminal lawyers are known as defense lawyers or prosecutors. Why not? That is what they do. Why shy from the label? Here the Spaulding firm chose first to advocate, then not to be associated with, the DOMA defense, bowing to pressure by partisan advocacy groups.
The Spaulding firm could ethically choose to take, or not take, the DOMA case. The argument that lawyers have an ethical obligation to take cases is hogwash. They do have an ethical obligation not to desert them. Spaulding made a conscious decision to take this case. Then, reportedly, activist groups lobbied firm clients and law students to urge the firm to drop the case. They succeeded. Once taking the case, it is craven to abandon it to gain popularity (or clients) among lay observers. This is not an ethics issue; it is a financial capitulation to public advocates whose opinions are quite appropriate in the public debate but an inappropriate reason for lawyers to drop cases.
Ronald Goldfarb is a Washington attorney and author.