Former Bush Solicitor General Paul Clement, a partner at the law firm King and Spalding, was contracted by the House of Representatives to defend DOMA (the Defense of Marriage Act) in court. A few days later, K&S dropped the case. Clement resigned from K&S in order to continue defending DOMA.
So why did K&S drop the case? We don’t actually know. We know that gay-rights group Human Rights Council (HRC) had loudly objected to K&S taking on DOMA’s defense, going so far as to contact some of K&S’s clients (including Coca-Cola, who some say may have asked K&S to drop the case) and getting ready for a boycott.
It also seems there was internal dissent within the firm; there were reports that the heads of K&S’s diversity committee hadn’t been consulted, and an unusually broad “gag rule” in the contract forbade any employee of K&S from expressing opposition to DOMA, even outside of the workplace. (This provision appears to be illegal in some states.) And one of the heads of the firm said that the case hadn’t been adequately vetted before being accepted.
K&S and HRC have been subject to scorching criticism in the wake of all this, not just from opponents of marriage equality, but also from supporters of SSM.
I’m sort of a fence-sitter on this one.
1) Tactically, HRC going after K&S was a bad move. What was HRC hoping to accomplish? There was never a chance of leaving DOMA stuck with second-rate representation; even if Paul Clement hadn’t stuck with the case, there are other top-rank conservative lawyers who would have been happy to take the half-million-dollar case.
(The “gag order” was worth fighting against, but probably could have been renegotiated. If it turns out K&S withdrew from the case because Congress refused to budge on “the gag order,” then I’d entirely approve of K&S’s decision.)
2) I don’t like the idea of boycotts limiting people’s (or Congress’) choice of lawyer or law firm. In close cases, the ability to retain a top-flight lawyer could make a difference; the outcome of a court case shouldn’t be determined even indirectly by boycott threats. Our court system is imperfect, but making boycotts part of the system makes it even worse.
And, again, HRC didn’t hurt DOMA’s chances at all. DOMA has powerful interests behind it, and Congress has $500,000 to throw around defending it. A culture of boycotting law firms could do more to harm the poor and the powerless than anyone else. It’s not hard to imagine the US Chamber of Commerce pressuring a law firm not to represent a small union, or a client like Lily Ledbetter.
3) But I don’t primarily blame HRC. Blaming HRC for protesting is like blaming a fish for swimming; protesting is what activist groups do. I place most of the blame on K&S, which is a huge and powerful law firm, well able to stand up for themselves; having made the unwise decision to accept DOMA’s defense, they shouldn’t have allowed political pressure to sway them. (If that is what swayed them…. oy!)
4) Some of the criticisms of K&S, and of HRC, are overblown. Andrew Sullivan says that HRC is a “bully,” for example; but it’s hard to see one of the nation’s most powerful law firms as a helpless wimpy kid that only a cowardly bully would pick a fight with. When you fight the well-heeled and powerful, you may or may not be right, but you’re not a bully.
I’ve heard several people talk about the constitutional right to a defense. But that’s criminal law; DOMA is civil law, and there’s no constitutional right to a lawyer in a civil case. Nor is DOMA a person (or corporation) with constitutional rights. Nor was there any chance that DOMA would be undefended in Court.
5) Frankly, what disturbs me most about this is the free speech issue of the House of Representatives negotiating a contract which exerts broadbased control over the political speech of private citizens in their non-work time.
6) Boycotts don’t sit comfortably with free speech, for me. Boycotting a company because it mistreats employees, or because it commits crimes, makes sense to me. If we boycott Snoopy’s Pants Factory because they’re a sweatshop, we’re saying “treat your workers decently or we’ll drive you out of business.” That’s a reasonable, principled stand; companies with indecent labor conditions deserve to be driven out of business.
But boycotting Snoopy’s Pants Factory because Snoopy supports political causes I disagree with? That’s saying “stop advocating for things I disagree with or we’ll drive you out of business.” That’s not a message I’m comfortable with.
When private citizens use economic pressure to shut people up that’s not technically censorship. But it still goes against the ideal of free speech.
On the other hand, people have the right to decide where to spend their money — and where not to spend their money. It’s not a simple issue.
I think I’m on the fence over this as well. That said, I think I disagree with where on the fence you are sitting on two points:
I don’t think HRC is blameless if there is blame to be apportioned. Yes advocacy groups will protest, but if some sorts of protest are wrong (either morally or tactically), I think it is perfectly valid to fault advocacy groups for engaging in those tactics. If you believe that trying to deprive someone of their attorney by threatening the attorney’s business is wrong, then I think it is fair to fault an advocacy group for engaging in that tactic. You really don’t have any way of keeping that tactic from being used except blaming and shaming advocacy groups that use that tactic.
The other point I disagree on is about boycotting a business because of the political speech of the business. I agree that it is questionable to boycott a business because of the personal speech of someone in the business (even the owner of the business), but if the business itself engages in political speech, I don’t think it should be protected from boycott. The speech of a lawyer defending a client in a politically significant case is not political speech by the lawyer as an individual, it is a business activity.
Well, sure, it’s what they do. But some decisions of activist groups are stupid or ill-conceived, like this one. I don’t blame HRC for being an activist group generally, but this was a boneheaded move. I don’t think it’s reasonable to give them a pass just because they’re an activist group.
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Bullying involves tactics as well as body weight.
Not to open up a can of worms, but: Remember this recent thread?. HRC’s lobbying here serves as an excellent example of some of the issues raised there.
HRC didn’t just try to paint DOMA as anti-gay or bigoted. HRC tried to paint the position that the advocates of DOMA should be able to choose their counsel of choice as anti-gay or bigoted. K&S is, understandably, very leery of being painted as anti-gay and bigoted: in fact, it’s been pretty pro-gay in the past. Irrespective of the rightness of K&S’ position, HRC made the conversation too risky to have.
It’s SOP, and it’s not a free speech issue at all. You may not care what your lawyer actually thinks, and you may not care whether your lawyer has taken opposing positions in the past. But you generally would care if your lawyer actively opposes your position in the public sphere while they are representing you.
K&S people didn’t have to say a single word in defense of DOMA. They didn’t have to lie if they were asked their opinions on DOMA. They didn’t have to talk about DOMA at all. They only had to refrain from actively opposing DOMA while K&S was defending it. That’s just what you buy into when you work for a firm.
And as for free speech: nobody at K&S was forced to work in the field of law, much less K&S specifically, much less K&S during the pendency of the case. There aren’t low income wage earners here; they’re largely people who make a lot of money in exchange for certain sacrifices. This wasn’t a one-sided contract.
(I might point out that, unlike HRC, Congress is well aware that lawyers are hire to do a job, not be a true believer for the cause. Otherwise they’d not have hired a comparatively gay-friendly firm in the first place.)
I don’t have time to write full responses now, but I do want to clarify one point: I’m not saying that HRC is “blameless,” nor that I’m “giving them a pass.” Obviously, I was less than clear about that, since neither of you understood my intention.
What I am saying is that I blame K&S more than I blame HRC. But I don’t think either is blameless.
The reason I feel a boycott threat was warranted was because of K&S’s attempts to frame itself as a law firm interested in and actively cultivating a culture of diversity and inclusion. Don’t try to get the dollars of progressives by rainbow-washing yourself, and then turn around and take on a case trying to limit gay people’s civil rights. It’s the same kind of two-facedness as companies claiming to be “green” and then engaging in all kinds of environmentally unsustainable practices, and I’m in favor of exposing this kind of false advertising and encouraging dollars to be spent with a company that actually lives up to their stated mission and values.
I know you acknowledge that it’s not a simple issue, but your distinction here seems strange to me. You appear to be saying that unfair working conditions are an absolute wrong and so therefore it’s okay to boycott a business perpetuating them, but that when it comes to a corporation’s advocacy of “political causes,” boycotts are not okay (because political causes are not “reasonable, principled stands”?)
I agree that unfair working conditions are wrong, but the labor movement, just like the LGBT rights movement, is a political cause that has multiple sides. So, for the sake of argument, doesn’t a boycott on a corporation that runs a sweatshop stifle the “free speech” of that company to advocate for freedom of contract?
And, isn’t such a boycott similar to how a boycott on, say, Lucy’s Footballs, stifles the free speech of that company to advocate against same-sex marriage?
My point is that it’s not self-evidently clear to me why you support boycotting in the first instance, but not the second.
I also think that the right for people to spend their money where they want to spend it is a big one that outweighs a corporation’s “free speech” rights- mostly because I tend to skew toward granting more rights to human beings than to corporations.
I have a lot of respect for the roles of lawyers to present the best argument for a side of a litigated issue as can be mustered (and obviously paid for), particularly on issues that are very sensitive and for clients I may personally loathe. Case in point, the ACLU’s representation of the Ku Klux Klan, defending their rights to freedom of assembly. There are few groups and causes I loathe more than the KKK, but I’d rather they gather and expose themselves as creeps (and face the counter-protestors mocking them) than fester in silence until they become an explosive problem we can’t handle. (Pardon the mixed metaphors; sleepy from burrito.)
So going after K&S makes no sense to me. I get being pissed at them, but it’s too shooting-the-messenger IMHO. However, if the firm backed down due to outside pressure, I don’t blame HRC or anyone else but K&S — in fact, I think they violated a fundamental responsibility of representation to stick with a client to the bitter end. (Not counting exceptional cases where a client is abusive or puts counsel in a position to violate the law, etc.) If I were ever in a position to need legal representation, this weakness in the face of public opposition would make me think twice before soliciting their services.
Katherine Franke at The Columbia Law School’s Gender and Sexuality Blog disagrees with you, as does the law in several states.
If the bigots in the House of Representatives write their contract so as to require a law firm to violate labor law, I’m not surprised the firm backed out.
I agree that the HRC was wrong to pressure the firm, though … I think we ought not pressure law firms to not represent clients with unpopular points of view. It was wrong when the right wing was doing it to law firms who represented accused terror suspects, and it’s wrong now.
—Myca
I’m feeling a little loopy today, so forgive me if I fail to see exactly why I should care that a law that denies rights to millions of Americans can’t find expensive legal representation at one firm? Big deal – move on the the next firm, and I hope HRC shames the hell out of them, too.
It’s not a person that’s being pushed out of being represented; it’s a repressive law. And you’re telling me that Washington D.C. can’t find a lawyer for it? Right. I’ll take that bridge you’re selling as well.
My point, (snarkiness aside) is that it will find representation. I don’t see the point of this at all; it should be embarrassing to defend a law like this.
I have completely the opposite view.
I think K&S are okay. If a lawyer doesn’t think they’re the best person to represent someone, then resigning is the decent thing to do. The real problem in these conflicts are people hanging on to the money and doing a half-hearted job. Resigning means the client can find a better representative and allows them to be compensated for the breach of contract; and would they really want a lawyer who wasn’t fully committed anyway?
As for HRC – I have problems with them. It’s okay to try and win legal cases, but it’s not okay to to anything to win them. On the one hand we have things that are obviously crimes – like perjury and falsifying evidence. On the other hand there are a wide range of other activities which aren’t criminal in themselves but which are wrong to do to unfairly win a case – things like malicious prosecution, abuse of process, obstruction of justice, and contempt of court. If you and your lawyer and your witnesses had booked taxis to get to court, and I offered the drivers more money to go somewhere else so you couldn’t get to court – there’s nothing wrong with offering someone a better deal, but you wouldn’t want me to win the case because of that. It’s an attack on the administation of justice.
I totally disagree with your view on boycotts over “moral” issues. I think they are valid. For example the owner of Dominics Pizza has publicly stated that he donates much of his profits to Right to Life causes, opposing both abortion and contraception. Why should I give HIM the money to support these causes. I can get pizza from a lot of other stores, or just eat Chinese, but I will not buy from that chain because I know that the profits go to a cause I abhor.
Should the HRC have called out K&S? Why not? The HRC was not lying about what K&S were doing. There are thousands of lawyers, why give money to a firm that is representing a law that will make you a second class citizen. Free speech works both ways. Free speech means you have the right to give your services to whomever you want AND the people who disagree with your actions don’t have to use your services and they have the right to tell others why they made that decision and urge them to do likewise.
I’m a law librarian. I admire the people who take up unpopular causes. But I also admire the people who boycott businesses that support moral stances that they disapprove of.
I mean for goodness sakes the HRC didn’t ask that all the lawyers in the firm be disbarred. They asked people if they really wanted to be associated with a firm that was defending this particular law. That’s the American way.
You DO understand, of course, that this is precisely the sort of social shaming which has been used against a variety of causes in the past, many of which you probably support or would have supported? (Examples: defending “communists” during the McCarthy era; defending terrorist’s Constitutional rights as of late; defending blacks during the civil rights era; etc.)
DOMA is stupid. But stupid as DOMA may be, it’s a small part of a large and very important system. And that system works best when outsiders don’t interfere with choice of counsel.
When you start making an exception for DOMA then you are chipping away at the very parts of the system which have historically been used to benefit unpopular minority groups. The issue for me is that once you corrupt the process it becomes very, very, hard to return to it. I’m proud to be a member of a profession in which I could respect Congress’ lawyer for his skill in defending DOMA while simultaneously detesting the statute itself. It’s the same system which allows me to defend a poor tenant without being viewed as someone who likes to steal from landlords.
All I’m saying is that a lot of the anti-K&S, go-get-’em stuff seems more than a little ill conceived.
But boycotting Snoopy’s Pants Factory because Snoopy supports political causes I disagree with? That’s saying “stop advocating for things I disagree with or we’ll drive you out of business.” That’s not a message I’m comfortable with.
I disagree with this on two bases: (1) you seem to imply that the impact of “political causes” is less than that of an individual sweatshop, and I think that 8 years of a Bush presidency should have convinced us that politicians and their policy choices can be much *more* damaging. (2) Really, a boycott of Snoopy Pants is about not giving your money to a company that is going to spend it against your interests — I can shop elsewhere for my pants in most instances, so I might as well have the information on which to make my choice, including the information that my spending could help fund the Tea Party or other craziness. I think that’s a legitimate form of social, political, and commercial interaction.
(ahem, “impact”)
I don’t think anyone other than K&S has done anything even slightly wrong here. Activist groups should feel free to pressure anyone they like, from little girls running lemonade stands, to the Pope.
Law firms, however, having accepted a commission, should stand firm in the defense of that client through Hell and high water. I’m no expert in the legal canons, but my impression was that attorneys are supposed to stick with you unless you stop paying them, or if they find out that you misled them deliberately on a substantive matter. Neither of those apply here.
I wouldn’t hire K&S to mow my lawn. I don’t see why anyone else would either, ever again.
G&W – I realize what you’re saying, but the distinction I draw is that those were people. This is the defense of a law, and I don’t think it has that same moral hazard attached to it.
Would I assume a lawyer agreed with something merely because he represents it? No. Would I avoid a company that represented something I don’t believe in? Yes (I’ve just done it with Go Daddy.)
Perhaps precisely because this is so tied into freedom of speech to me, I don’t see “shaming” an advocacy group as the solution. In fact, I find myself agreeing with Robert @ 14 (perhaps I’m having an off week. ;) )
Well, I agree with the second paragraph. Apparently some activist groups don’t, which makes me think that their morals are a bit shaky.
And I suppose I agree with the “Activist groups should feel free to pressure anyone they like, from little girls running lemonade stands, to the Pope” stance, though I don’t understand everyone unwillingness to pillory HRC for making a boneheaded move. Surely if they can feel free to throw the heat, they should take the heat, yes?
There’s a HUGE difference between “we think gays shouldn’t marry!” and “we’ve been hired to argue that the law permits others to say that gays shouldn’t marry!” One is making your own representation. The other is representing someone else.
Now, if K&S was publicizing its interest in volunteering specifically for anti-gay litigation, then you’d have a case. But of course they weren’t. In fact, K&S was, as these things go, relatively gay-neutral.
Good luck, though, getting K&S to litigate on behalf of gay rights. At least for a while.
Huh?
Unlike K&S, HRC is actually saying what they believe. They’re not being paid to advocate (or if they are, they’re hiding it pretty well.) And “what HRC thinks” apparently includes the belief that it’s OK to attempt to interfere with their opponents’ choice of legal counsel. In other words, a gloves-off war OUTSIDE the legal arena.
That is appallingly stupid as well as immoral. And, again: unlike K&S, they’re actually voicing their own opinion.
If you can’t shame them for that, what can you shame them for?
Think of it this way:
Not everyone who speaks is capable of speaking on their own, especially on a complex issue. And in some areas it’s legally impossible (corporations cannot represent themselves pro se in court, even if they want to; I doubt Congress can either.)
So we WANT people to be able to hire official mouthpieces (lawyers, lobbyists, salespeople, etc.) so that they can get their arguments out where they belong. And we WANT them to be able to choose who they hire, because that’s an important part of getting the argument out there.
In order to make that work, we need to stick to the social convention of ignoring the mouthpiece (and not attaching the hired-on views to them) and, instead, judging the views at the person who hired a speaker. But HRC has attacked that foundation. They are, in my view, attacking the very functionality which allows unpopular people (and views) to be defended in court. I hate them for that.
Do you think that terrorists should be able to have lawyers? Do you think that the Oklahoma City bombers should be able to have lawyers? I do. But in HRC’s world, they’d have a damn hard time finding any.
percysowner:
Well, the reason that you should not boycott Domino’s Pizza is because the person you’re talking about is the former owner, not the current owners. Domino’s profits haven’t gone to support anti-abortion causes, even indirectly, since 1998.
gin-and-whiskey writes:
One important difference is that all of your examples involve defending human beings, as opposed to defending a law. A defendant in a criminal case is not a criminal until after the court verdict comes in. The concept of “innocent until proven guilty” exists because any of us could be accused of a crime, and so it is important that any of us have access to a competent defense attorney.
The concept of “innocent until proven guilty” simply does not apply to a law. As a citizen, I have a responsibility not to treat a human being as if he or she is guilty until proven otherwise. I have no responsibility as a citizen to advocate for a law as if it is constitutional until proven otherwise. My responsibility is to follow the law. I have zero moral obligation to pretend that a law is a good law until a court rules otherwise.
In fact, quite the opposite is true. If I believe that my elected representative is considering voting for a law that I believe to be a bad law, I have every right to call her and tell her that I think it’s a bad law. I have a right to threaten to withhold my vote in the next election if she votes for the law.
But it’s more than just a legal right. I have a moral right to threaten to withhold my vote from an elected representative if he or she votes for a law that I believe to be a bad law. I do not have a moral right to call a state defense attorney and threaten his job if he defends someone that I have independently determined is guilty.
Do you see the difference? It is not my place to make an independent decision about whether a criminal defendant is guilty, and therefore it is wrong for me to try to discourage a lawyer from representing a criminal defendant.
It is absolutely my place to make an independent decision about whether a law passed by my elected representative is a good law or a bad law. However, you seem to hold the belief that I cannot hold a lawyer morally accountable for advocating for a bad law. I would contend that if a lawyer can choose to take a case advocating for a law, then that lawyer could have chosen not to take the case, so it is entirely appropriate for me to hold such a lawyer morally responsible for their decision.
A law is not a person, so your analogy doesn’t work.
How about this? If a state passed a law mandating the castration of people who are disabled, would it be reasonable to pressure a private law firm not to take a case which could potentially keep that law on the books?
The issue of whether DOMA is a reasonable or constitutional law is a separate issue from whether it is reasonable to pressure a law firm not to advocate for a law. If it is wrong in principle to hold a law firm accountable for the laws that they defend, then it is always wrong to hold a law firm accountable for the laws that they defend. That means that if a private firm took a case defending a law that forced Jews into concentration camps, we would have a moral obligation as citizens to say, “It’s not the law firms’ fault. Every law deserves its day in court.”
Do you agree?
Blaming K&S only works if you assume that K&S and Clement acted in unison right up until K&S decided not to keep the case. This doesn’t appear to be what happened.
As long as we’re speculating? Here’s where I’d put my money: Clement, as a senior partner of the firm, went ahead on his own and brought in the House of Representatives’ business on DOMA. Because he was a senior partner, K&S didn’t pay all that much attention to the specifics of what he was doing until HRC started making noise. K&S didn’t want to put its weight behind Clement’s pet project, and Clement decided he, his book of business, and particularly his DOMA client would be happier and better-fed at a more conservative-minded law firm, so he took it there.
I wouldn’t even assume that K&S said “OMG but we love gays” or “we have to drop the case or HRC will eat us.” Like every for-profit other law firm, K&S is there to make money. If they decided that DOMA was really a loser, that they wouldn’t make any money, that the terms of Clement’s deal were not terms the law firm found acceptable (like the gag order on employees), or that it wouldn’t, overall, be profitable, they’d drop the case.
Clement is an advocate. You wouldn’t expect him to say “My firm thinks DOMA is a loser right out of the gate, so we’re parting ways,” or “K&S was too cowardly to agree that it would fire gay employees who expressed disagreement with DOMA, so I left.”
I do agree, actually. Assuming the law was democratically passed, it ought to have its day in court, if for no other reason than to definitively establish that such an awful law has no place in our system. So if Hitler & Sons want to take on the job of defending that law, more power to ’em. But then going forward, I also wouldn’t hire that law firm, on the grounds that they decided to accept the job of defending such a horrific law and I don’t want to associate with such people.
The time for the law firm to make their decision is when they decide to take, or not take, a particular case. People saying “I’ll never hire K&S because they decided to take the job of defending DOMA”, are being perfectly rational.
But once they’ve decided that they can somehow bear the moral onus of trying to uphold the Send Barry Deutsch to Camp bill, or DOMA, or the Protect Fluffy Kittens Law, then they need to have the stones to hold to that decision against all comers. If they don’t, then they’re moral squishes who don’t deserve anyone’s business anyway.
It is OK to judge.
Yes, I agree. I support the application of the principle even in situations where the result is something I find personally repugnant.
It turns out that Clement is again joining with a law firm to defend DOMA; this time it’s a smaller firm called Bancroft, and it supposedly has a conservative history already (the writer of the Patriot Act is either a partner or an associate there), so it probably won’t be changing its course the way K&S did.
As before, there is that very disturbing gag order clause negotiated by Congress (specifically by Rep. Lungren, approved by Boehner, and passed without any input from the Democrats). This time the direct effects may not be quite as egregious, since it’s likely that most of the attorneys with Bancroft are comfortable with their firm supporting DOMA; but still, the principle behind this – that any company that has any contact with doing something for the government can and will bargain away the rights of its employees – bothers me. Of course, in these times I shouldn’t be surprised.
Which, again, is precisely what “they” did. “They” being K&S as a firm; Clement, when he was at K&S, is the one who took the case.
“Yes, I agree. I support the application of the principle even in situations where the result is something I find personally repugnant.”
At least you’re consistent.
But since this is a civil case, it follows that you believe that no lawyer should be viewed as morally responsible for a case they take, even if they could have chosen not to take the case.
So, for example, lawyers who sue small farmers for Monsanto after Monsanto soybeans pollute their fields and infiltrate the genes of the small farmers’ crops–those lawyers are “only following orders,” and we shouldn’t hold it against them?
Oh, by the way: the “we took this case because every case deserves its day in court” is bullshit. There is a world of difference between the general obligation to represent those who are unpopular, can’t afford lawyers, or are at risk of great injustice, and personally deciding to represent an asshole cause. Lawyers are not doctors; we don’t have to help anyone who asks. “A lawyer is not a bus,” as we say.
And the moral pretense also ignores the fact that law firms, especially big firms, reject perfectly meritorious cases for economic reasons. If you have a small business and you tell Bigshirt, Golf & Cufflinks that you can only afford to pay them $100 per hour for their help, do you think they will spring to your aid, crying “Everyone deserves their day in court!” If you do, you’d better not start a law firm, because you’ll be out of business in no time. The only uneconomic cases law firms take are those that they think will benefit them financially in the long run: pro bono (completely free) cases, usually helping poor people, or small cases as favors to important and well-paying clients.
I still haven’t heard a counter-argument saying why it’s not OK to organize a boycott against an organization that publicly espouses a set of values to build a particular reputation in the community, and then professionally pursues activities that violate those values.
Yes, pretty much (assuming it’s not frivolous.)
They ARE following orders; it’s not a hypothetical. And their actions–which are taking place entirely in a court of law–are per se legal, and per se within socially acceptable bounds.
So: no, we should not blame the lawyers; yes, we should hold it against Monsanto. That is precisely my point.
This sort of consistency is important. There’s a tendency among folks to adhere to a doctrine of self interested exceptionalism: it’s OK to break the rules so long as the goal is worth it; and the particular issues you like happen to conveniently all be worth it. But of course that same view can be held (and the tactic used) by your opponents. Once you open to the door to “end justifies means” thinking, that door is hard to shut.
It may be that we simply have a core disagreement about the function of the legal system. So let’s find out:
Generally speaking, do you think it’s appropriate for a public interest group to organize against a law firm who is hired to take a position?
Does it matter to you whether the firm was hired to overturn or defend the law?
Does it matter to you whether the law is one you like or dislike?
Does it matter to you whether the firm was hired by an individual, a public interest group, a corporation, or the government? Does it matter to you who is paying the bills? (individual plaintiffs often have a lot of help.)
My answer is “no” to all of the questions here. If you’re answering “yes”to any of these: why?
No, but that generally depends on the reality that people can always find someone else. Your moral obligation to assist people increases as their alternatives shrink (not that this applies here, of course.)
You’ve also got a contradiction there. Are you representing those who are unpopular? Are you declining those who have an “asshole cause?” They’re often the same thing, for obvious reasons.
You’re entirely ignoring the argument.
The pretense is “lawyers are not assumed to share their clients’ viewpoints.” That has nothing to do with whether or not they take the case.
Love the firm name.
But no, of course they won’t. So what? Civil Gideon aside (an interesting discussion FWIW) we’re not discussing that. We’re discussing an overt attempt to interfere in the balance of the attorney-client relationship.
What’s a “public interest” group? I’ve never seen such an animal.
I’ve seen private interest groups, that have claimed rhetorically to speak for “the public”, but who in fact meant “us and some of our friends and the people who feel the same way we do about issue “.
I say this not merely for pedantry’s sake but because of your first question. Private interest groups should pressure whomever they think pressuring will advance their agenda. That’s what they’re for.
G&W:
Let me see if I’ve got your argument right – you don’t want protest groups to interfere in the relationship between any client and lawyer because you feel that it will compromise the ability of the unpopular/underprivileged to “have their day in court.” The reason it applies in this situation is because if you set a precedent, then others will use it in situations where it is a person being defended and not a law.
You’re starting to hook me more, but three things keep sticking – perhaps its because (rightly or wrongly) I’m looking at this as an individualized situation.
1) This law will find representation. I’m surprised that it isn’t being fought over. Lawyers tend to be a conservative bunch, IME, and I’m sure there’s plenty of capable, hard-working attorneys that would love to part of the fray. As you’ve admitted, it’s not really an issue that it won’t find representation.
2) The client is the government. It’s not a person. It’s not protected under the Due Process clause. The other situations you’re listing are protected by the Constitution.
3) It would interfere with HRC’s right to freedom of speech to keep them from boycotting. Since the law is regulating a minority, and HRC is representing those in the minority or who are sympathetic to the minority, technically any restraint in this case on HRC would come down more on the “shut the minorities up” side.
I respect what you’re saying, and I think you have a good point. I just feel the pros outweigh the cons in this case.
Correct. It’s obvious that Congress can obtain other representation (as they have.)
I entirely agree. This is a case where the outcome isn’t the worst case scenario.
But that’s usually how it happens. Take speech rights: people don’t start by muzzling marginally unpopular speech. They start by muzzling only the most obnoxious and horrific speech. But even though that is correctly described as “muzzling horrific speech,” it’s also a way to establish the concept that it’s OK to muzzle speech at all.
And once the concept is there, it proves to be much, much easier to move the line. Next thing you know the muzzle gets applied to speech which is only marginally offensive, for which the muzzling–if it was the initial example–would never have found political support.
So yeah, in this case Congress and DOMA aren’t affected at all. But that was never my worry.
Sure. But since you’re pointing that out: Is there any better situation than a democratically elected representative in which it is more appropriate (and simple!) to blame the person, and not their hired minions? It isn’t as if these are faceless executives in an offshore corporation. Vote the right people in and they won’t defend DOMA. Hell, vote the right people in and they’ll overturn DOMA without court involvement at all.
But generally: while I agree that individual rights are paramount, it seems pretty silly to insist that a governmental branch of the U.S. Government should not have the right to unilaterally choose its own counsel. Unlike the president, Congress doesn’t have a Solicitor General; they need to hire a lawyer when they want one. But just like the president, Congress needs to be able to do what it sees fit to protect its Constitutional rights, subject to the USSC interpretation. Even though this isn’t an individual right, it cuts to the function of our government.
I don’t think anyone should “keep HRC from boycotting.” I’d fight for HRC’s right to say whatever they want, including this (and I hope that in that fight, they could choose whatever lawyer they prefer, without interference.)
But I think people should recognize that HRC was wrong to make this choice of what to say. I hope people will tell HRC that, and talk about it. And I hope that social pressure deters other groups from doing the same thing.
Likewise. I disagree but it’s not as if I can’t see the other side. It’s just that there’s always some group that feels incredibly strongly about pretty much any issue. Find a topic and you’ll find people who will argue from the heart about why they, personally, should be exempt from what they think is otherwise a nice general rule that should apply to everyone else. I think a system of exceptions doesn’t work well.
gin-and-whiskey @29: I’m not ignoring your arguments. I’m just disagreeing with them.
First, and speaking of ignoring: You’re treating this as a situation where K&S agreed with the House of Representatives that it would defend DOMA, when according to K&S, they did not. In other words – and Clement has not disputed this, to my knowledge – this is a situation where a senior partner went off and got a client, didn’t run it by the firm first, and the firm decided – as it does with all cases it’s considering taking on – that they didn’t want this one.
In other words, the idea that there was an attorney-client relationship between K&S and the HoR in the first place is pretty dubious. There absolutely was an attorney-client relationship between Clement and the HoR; his firm declined to get involved, and so Clement was faced with the choice of withdrawing, or taking the case to a firm that was willing to put its title over his. He chose the latter.
As to ‘interference in the attorney-client relationship’ – both the Attorney General of Virginia and the NRA have withdrawn their business from K&S. Do you think this is improper? Isn’t this an interference in K&S’s representation of its clients? I don’t think it is.
You’ll note that HRC isn’t trying to pressure Clement’s new firm. That’s because this isn’t about trying to make sure that nobody dares to defend DOMA; it’s about anger at a law firm that is trying to bank on the goodwill of a community and then taking on clients that shit on that community. If a Shook Hardy & Bacon partner decided to represent People Against All Cigarettes’ challenge to a pro-tobacco law without running it by his firm, I would fully expect SH&B to say “Whoa, dude, you didn’t ask, and Phillip Morris is all over us about this, so drop them”. And regardless of my feelings about SHB or Phillip Morris (largely unprintable), I would fully support this decision.
You’re also trying to conflate “what lawyers believe” and “what cases lawyers choose to take”. We’re arguing about the latter, not the former: when a law firm takes on PolluteCo’s business, chances are pretty high that they’re doing it for the money, not because they have an ozone fetish; when a law firm takes on a pro bono case, the individual lawyers on that case might feel righteous, but really the firm is trying to boost its public image.
I admit I don’t follow the argument that it’s OK for a law firm to say “We will not take this case because you do not pay us enough,” but wrong for a law firm to say “If we take this case we will lose enough money from other clients that, on balance, you do not pay us enough to take it.”
Unlike Simple Truth, as I’ve heard more of your case, GNW, you’ve convinced me more of the other side than I was before.
A few things here.
1) It’s reasonable for people to choose do do business or not to do business with whoever they like.
2) Law firms aren’t immune to this.
So for example, if some big name law firm took on the defense of the man who murdered your little brother, it would be pretty reasonable for you to take your business elsewhere when you need your will written up. Probably your friends, out of sensitivity to your feelings, do the same.
What’s going on here, in part, is that there are a lot more ‘gay people and their friends’ than there are ‘you and your friends’.
Your position is that law firms ought not be publicly excoriated for their choice of clients … and I agree, to a degree. I don’t think that defending DOMA for the bigots in congress makes K&S bigots themselves, any more then I think that defending terrorist suspects makes those law firms terrorists.
But still … if you had friends or family die in 9/11, you still might reasonably choose not to patronize the firm defending Khalid Sheikh Mohammed. And if that was a law firm that had made a business out of being sensitive to the rights of victims of terror attacks, had advertised extensively on that, etc, you might not only choose not to patronize them, but you might reasonable encourage your friends to do the same.
It’s not that they’re evil, it’s that they’ve joined a different team … and they’ve done so after making a business out of being on your team. It makes sense that you’d be pissed off.
That’s the reason the HRC gave for their opposition:
And yeah, I do understand your complaints and concerns, and I generally don’t think that firms should be pressured to drop clients, but at the same time, I don’t think that it’s out of line for the NAACP to make a stink about a firm that advertises itself as racially inclusive while deciding to take on the defense of anti-miscegenation laws. Pick your team, you know?
I think it’s a tough issue, and I think that either position could legitimately be called anti-free-speech, which is also troubling to me.
—Myca
Or, after posting, “Yeah. Everything Mythago said.”
If HRC said “we will hound anyone who tries to defend DOMA” that would be wrongity wrong wrong. Since that is not what happened here, and since HRC is not an arm of the government, I don’t see the problem.
Yep. Okay, that’s the distinction. I’m decided. I’m with Mythago on this.
—Myca
Hokay. Not so surprising, either–there’s a lot of people on my side and a lot of people on yours. As I conceded above, I think I’m right but it’s not “everyone who disagrees with me is an idiot” right. Presumably you’re the same way, or at least I hope so.
I’ll think on this a bit, but I agree that this makes sense.
This, however, makes no sense. The VAG and NRA are clients. I’m arguing that clients have the right to hire who they want absent outside interference. How could you interpret that to mean that clients shouldn’t be able to hire (or fire) who they want?
(after this post, I plan to bow out. It’s an interesting discussion in theory, but I think we simply assign different weights to different social costs/benefits, and doubt we’re going to convince each other at this point.)
gin:
The principle you are presenting here is that “nothing that a lawyer does that is legal should be viewed as morally reprehensible.” I completely disagree with you. I think that is possible to do something that is legal that is still morally reprehensible.
Lawyers are human beings first, and lawyers second. As a human being, you are responsible for your actions, unless you do not have a choice. A lawyer for a massive corporation like Monsanto who files a repugnant lawsuit against a small farmer because s/he and Monsanto know that the farmer doesn’t have the resources to fight such a lawsuit is absolutely, one hundred percent morally complicit in that action.
If the lawsuit is indeed repugnant–such as suing a farmer for planting soybeans which have been polluted with your clients’ DNA–then the lawyer could have chosen, and should have chosen, not to take the case.
The lawyers working for Monsanto are part of Monsanto. They are human beings with consciences.
I actually think that it’s possible to say that “every law deserves to be defended competently in court” without going so far as saying that lawyers are never responsible for the actions they take, as long as those actions are legal.
A lawyer who takes a case to advocate for an oppressive law is legally obligated to perform their duties to the best of their abilities. If I’m not mistaken, that means that they must fight as hard as they can to keep that oppressive law on the books. If they could have chosen not to do that, then they should have.
(Edited to add: Sorry, I wrote this before I saw that you said you’re bowing out. If you don’t wish to respond, I understand. I just think my points here are valid, so I’m leaving the comment up.)
Myca,
I actually disagree with this. I mean, if someone feels uncomfortable hiring the attorney who defended their brother’s killer, obviously they have that right and I’m not going to judge them too harshly. But I still think that, in principle, it is wrong to hold a lawyer morally responsible for defending an accused criminal, even if that criminal’s alleged crime hits really close to home.
The purpose of the legal system in this case is first to determine guilt, and then to assign punishment. A lawyer who defends the accused is helping to determine guilt. If the cops arrest someone for murder, it is very very important to determine if that person actually did it. It is irresponsible for someone, even a family member, to jump to conclusions about guilt before the law works things out.
As such, vigilante justice is wrong. It is wrong to try to kill a person who is accused of a crime before they have been convicted.
On the other hand, when a law is being defended in court, there is no reason we can’t try to kill the law before the case works its way through the courts. Congress could “kill” the law tomorrow. In fact, Congress should kill the law ASAP.
If my elected representatives don’t kill DOMA, or at least try to, I am entirely morally justified in holding that against them. There is absolutely no utility in the concept that a law is “innocent until proven guilty.” The court may have to assume that position, but as a citizen, my only obligation is to follow the law. I don’t have to protect the law.
Phil @40: Srsly? So if you watch me shoot your brother in cold blood, you’re not allowed to make any judgments about whether I’m guilty or not until there has been a formal conviction? If I invite you over to my house and then rape you, it would be unfair of you to refuse to come over to my house “because you raped me” unless I’m actually convicted of rape in a court of law?
You’re mixing up different things in your post. Regarding someone as legally innocent, vigilantism, separating a lawyer’s advocacy from the lawyer’s personal inclinations, and holding personal beliefs about guilt are not all the same thing.
Mythago, it would make a very big difference to me if I were sure that the sequence of events were as you describe — Clement accepting the case without running it by the firm, followed by the firm saying “nuh-uh” when they saw what the case was and what the coditions of the agreement were. If that’s what happened, then I think K&S has acted entirely rightly.
But how do you know that’s what happened? That’s not what Clement said happened (afaik), and K&S has refused to say exactly what happened (afaik), except that their internal vetting procedures were inadequate. Is there some other source of information? Or have I gotten something wrong? (This is a case where I’d be happy to be wrong!)
* * *
G&W, at some point you said that unlike the executive branch, Congress doesn’t have in-house representation. That’s not correct — the House has a staff of 40 lawyers, who mostly help draft legislation but who also can represent the House in court. (I don’t agree with everything at that link, but it does support the narrow point I’m making here). They can get better representation for DOMA by going outside their in-house staff, but they don’t have to.
By the way, sorry I’ve been so absent from this discussion (and will continue to be absent) — I’m in Toronto for a comic-con, and can’t get online much. :-(
Well, shit, Amp, I didn’t realize that everybody was allowed to speculate but me.
I’m going by what I know of how big law firms work and, more importantly, on K&S’s statement after Clement left. “vetting was inadequate” sounds a lot like “we didn’t screen a senior partner’s client beyond doing a conflict check and then the shit hit the fan.”
But I don’t think that it really matters. HRC wasn’t, as has been noted over and over again, saying that they will punish anyone who agrees to fight for DOMA. K&S has been waving its LGBT credentials around, and HRC pointed out that it’s a little dishonest to do that and then agree to work for elected officials who want to preserve an anti-LGBT law.
Mythago, I misread you and didn’t realize you were speculating. Sorry that I misread you.
I think I mostly agree with you.
Reading this ten days later, I think you should do an update — it turns out that Clement signed the contract without review by the appropriate committee, and the big blowback was within the firm itself. And as one partner pointed out, K&S does corporate law, not constitutional law.
It was sort of interesting watching everyone trying to decide how much to bash HRC for doing what it’s supposed to do, but as it turns out, HRC was pretty much irrelevant, a condition that seems to be only getting worse with age. (And frankly, anyone who has been following the various gay civil rights issues would know that no one pays attention to HRC any more, no matter how much they try to grab the credit.)
K&S’ statement on this strikes me as classic CYA. All major law firms — including ones like K&S which specialize in corporate law — take on big con law cases to raise their profile (that’s half the reason they hired Clement in the first place). I wouldn’t be surprised if there was some t that hadn’t be formally crossed before Clement made his announcement, but I also believe that whatever it is was probably thought to be pretty pro forma right up until the moment that it became a lifeline. The odds that K&S would have dropped this case absent the public outcry still strikes me as astronomically small.
I’ve posted an update, here.
David, I posted the update before I read your comment — but what’s going on here seems like more than boilerplate cya to me. Let me know what you think in the comments of the new post, if you want to.
Well, yes. Like having the potential client approved by the appropriate business committee, so that before K&S opens a file and slaps its name on the paperwork, it has assured itself that there are no conflicts, that the case is one that the firm would accept and that the representation agreement meets K&S requirements.
If you think that’s merely a “t” to be crossed and no biggie, I suggest you talk to your firm’s managing partner before you start telling potential clients “Sure, my firm will represent you! Sign here!” or you might run into trouble.