Commentators and politicians are falling all over themselves to condemn King & Spalding for refusing to protect the Defense of Marriage Act in Windsor v. United States, while praising the firm’s former partner, Paul Clement, in continuing the representation.
They got it wrong. I write on behalf of 28 other gay and lesbian lawyers in Georgia who know that King & Spalding was right to withdraw, and who know that activists were right to expect the firm to do so. Withdrawals of counsel are correct and proper in cases like this, and activists were well within their First Amendment rights.
Big law firms are businesses. When accepting or continuing representation, firms must not only consider the client in that particular case, but also the implications for that case to the firm’s employees, the communities where the firm has offices and the firm’s other clients.
Withdrawals are commonplace. Lawyers are not doctors. Lawyers are permitted to withdraw for many reasons, including not getting paid, a client’s misrepresentation of facts or taking action contrary to a lawyer’s advice, a client’s failure to communicate with a lawyer, and because the client wants a new lawyer. Courts usually do not require that the withdrawing lawyer provide a reason. Withdrawals are ethically proper and sanctioned by the court if the attorney follows court guidelines. No one has suggested that King & Spalding violated any rules.
Commentators have, however, raised serious legal concerns with a “gag rule” in the contract that the House of Representatives imposed on the firm that would have infringed the free speech rights of all the firm’s employees. Professor Ari Ezra Waldman wrote in the blog towleroad.com that “[t]he agreement ... would have silenced everyone at [the firm], preventing anyone from voicing any opposition to,” the law. Moreover, the gag rule “would also have been illegal in at least some of the states where [the firm] has set up shop,” including California and New York, which has a law forbidding an employer’s restrictions on “an individual’s political activities outside of working hours.”
While the reasons for withdrawal are irrelevant, it could well be that Clement signed the contract without informing the firm’s management of these onerous terms, and the firm’s silence on their reasons is designed to protect him.
Because withdrawal of counsel is a routine matter, activists were well within their First Amendment rights to demand it. Gay and lesbian people are the most politically disenfranchised group in the U.S. today.
Whenever issues are important to us, rights which are constitutionally protected for others, the issues are placed on the ballot. We lose every time, and the courts have afforded us little protection.
We won the right to marry in the California courts, and lost it at the ballot box. We won marriage in the Maine Legislature and governor’s office, and lost it at the ballot box. We won the right to marry in the Iowa courts, and the judges were removed at the ballot box and a constitutional amendment may follow there. Every state that has proposed a constitutional amendment to ban same-sex marriage has passed one.
For perhaps the first time, gays and lesbians have played the little persuasive power we have in asking law firms to boycott defense of DOMA, and that power might have worked. This new boycott is really no different from, and probably less disruptive than, other boycotts, such as the boycott of South Carolina for display of the Confederate flag at its Capitol, or the boycott of Arizona by Latino groups and their allies.
It is Orwellian nonsense to state, as some have, that the firm was “bullied” to “back down” from defending an “unpopular law.” Gay and lesbian couples have been told for years that they cannot marry because same-sex marriage is not popular. Incredibly, marriage equality opponents now are pushing the jaw-dropping assertion that DOMA — the very law that robs us of recognition of our marriages — is itself “unpopular” and worthy of defense, like some poor, downtrodden criminal defendant.
Comparisons of this case to representation of prisoners at Guantanamo Bay or other criminal proceedings are inapplicable and insulting. The Constitution guarantees counsel to criminal defendants, but not to civil litigants, and certainly not to a branch of government.
Consider the facts: Edie Windsor is suing the government to get federal death benefits after the loss of her wife and partner of 40 years, Thea Spyer, benefits that are rights guaranteed to straight couples, but always denied to taxpaying gay and lesbian couples.
Clement is not trying to protect anyone’s rights; he is trying to deny rights, and it belies any portrayal of him as acting with a noble purpose. He is no Atticus Finch in taking this case, and King & Spalding should be lauded for wanting no part of it.
Douglas L. Brooks is an attorney practicing in the area of creditors’ rights. He lives in Atlanta with his husband and three children.
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