K&S Followup: K&S Never Accepted DOMA As A Client, Lawyers Claim

[Crossposted at Family Scholars Blog]

Two weeks ago, I blogged about King & Spalding’s decision not to defend DOMA. In comments at my blog, Mythago wrote:

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.

Mythago added that she was speculating — but recent developments suggest that Mythago was absolutely right. The Fulton County Daily Report (subscription required, google cache here) interviewed lawyers from K&S, who claimed that K&S never accepted the case:

The Daily Report’s conversations with two lawyers within the firm who spoke on condition that they not be named because King & Spalding has prohibited its people from talking publicly about the controversy, as well as a third person familiar with the situation, said that the DOMA matter was not submitted to the firm’s business review committee. They say the firm is being criticized for dropping a case it never properly accepted.

Clement has not spoken publicly about the matter since releasing his resignation letter. He did not respond to several calls and emails from the Daily Report over the past week and after receiving Sollers’ statement.

The firm’s only previous statement on the DOMA matter was that of Hays announcing the firm’s withdrawal from the engagement April 25, just a week after it became public that Clement had agreed to represent the U.S. House. “In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate,” Hays said, adding that he took responsibility for any mistakes. […]

The sources who spoke to the Daily Report said that the DOMA matter was never vetted by the firm’s business review committee before Clement signed a contract obligating the firm. They said the committee, composed of five partners from different offices, immediately began reviewing the case Tuesday, April 19—the day after the firm learned of the contract—and rejected it the next day.

“The firm did not back out. We never agreed to take it,” said one of the King & Spalding lawyers. […]

The sources said the firm’s partners were taken by surprise when the news broke that Clement had taken the DOMA engagement. By the next day, the sources said, some partners had learned that the case had not been submitted for vetting to the firm’s business review committee. All matters at King & Spalding must be approved by this committee, they said, adding it was discovered that there was no matter file for the DOMA case in the firm’s system.

Only the business review committee can create a matter file, said the sources. Without one, an engagement effectively does not exist, since there is no way to bill hours to it. The sources said nobody at the firm has the authority to override the decisions of the business review committee.

King & Spalding, like other large firms, is managed by practice groups, not offices. Partners submit a potential matter to the business review committee with approval from the practice group leader. A conflicts check must be performed and, if a case checks out, the business review committee facilitates further vetting, said one of the sources.

“Any matter that is controversial in any way or where there is a discounted rate goes through the business review committee,” said one of the sources, noting that the DOMA engagement was both controversial and had a discounted rate. […]

There was also opposition to a clause in the contract gagging the firm’s people from any advocacy around DOMA, said the sources, who added that the clause was likely illegal in California, where the firm has two offices.

Of course, it’s possible that the lawyers speaking to the Daily Report were flat-out lying — although it seems unlikely, since if they are lying, Clement’s pals within K&S could easily prove it by leaking internal documents showing that the case was properly vetted before Clement accepted it.

Furthermore, Clement’s ally J. Sedwick Sollers, a partner at K&S, released a statement defending Clement which said in part:

As I have reflected on this, despite the fact that our standard client/matter review process was not followed, it was reasonable for him to believe that the firm would accept the matter.

So even Clement’s ally admits that the “standard client/matter review” didn’t occur. And Clement’s resignation letter refers obliquely to “if there were problems with the firm’s vetting process”; Clement has never publicly claimed that he followed the firm’s procedures correctly, or that there weren’t problems with the vetting of the case.

It’s not possible for any outsider to know for sure, but from the evidence we have at this time, it seems obvious the bad actor here is Clement, not K&S. Clement accepted a case he didn’t have the authority to unilaterally accept for the firm; the responsibility for the bad results of Clement’s rulebreaking lies with Clement, not with K&S. Once K&S was finally made aware of the client, they reviewed the case and declined it promptly and properly.

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10 Responses to K&S Followup: K&S Never Accepted DOMA As A Client, Lawyers Claim

  1. I’m … not persuaded. Which isn’t to say that I think all this vetting stuff discussed actually happened, I just think it was “in the bag” until K&S needed a way to back out. Clement was almost definitely right to believe that K&S was willing to take the case — and I bet firm principals had communicated that to him. I frankly don’t believe that K&S would have backed off representing DOMA were it not for the popular backlash against it. It is the alpha and omega of the story.

    Whether or not Clement’s announcement jumped the gun in some formalistic sense is, to my mind, obscurantist. K&S was willing to let Clement take this case until it became a PR nightmare for them, at which point they changed their mind and latched onto the vetting process as a figleaf.

  2. Mythago says:

    David, it’s as if you didn’t even bother to read Amp’s post.

    K&S has marketed itself very heavily as a “progressive”, pro-LGBT firm, and taking a DOMA case damages that marketing. Why Clement thought this would pass muster I don’t know.

  3. Lots of firms (hell, essentially every major law firm) markets itself as pro-LGBT. It hardly distinguishes K&S from virtually any other firm (including ones with more conservative reputations). And I have to say that, having recently gone through the law firm application process, K&S doesn’t have a particularly liberal (or conservative) reputation. There are firms known specifically as liberal powerhouses (e.g., WilmerHale), but K&S isn’t one of them (it’s not like Gibson Dunn — a prominent large firm with a right-wing rep — either; it’s just a big law firm that isn’t seen as being particularly tied to any part of the political spectrum).

    Meanwhile, K&S hired Paul Clement — a conservative heavyweight appellate litigator — presumably to gain access to conservative heavyweight litigation projects. That’s why one hires someone like Paul Clement — he’s an exceptionally talented lawyer, yes, but he’s also a exceptionally talented lawyer with connections to conservative causes, and that helps bring in high-profile conservative litigation projects. WilmerHale hires Seth Waxman because he’s an exceptionally talented lawyer with connections to liberal causes, which helps them bring in high profile liberal litigation projects. That’s standard operating procedure for raising a law firms profile.

    Under normal circumstances, a case like this looks like a dream for a firm like K&S — big, sexy constitutional law issue, high-profile, in the news — firms live for these opportunities. This one happened to blow up in their face — but that’s a rarity. And hence, my guess is that K&S did not predict the implosion here, and until then was fine with Clement doing exactly what K&S hired Paul Clement to do.

  4. Ampersand says:

    But it really didn’t blow up in their faces — in terms of being a big story — until after they withdrew from the case. Before they withdrew, all they had was some grumbling from HRC. (The coke thing may or may not have happened.)

    And unless the lawyers quoted in the story are outright lying — which maybe they are, but I don’t see how you can be so certain they are — then the timeline here is really, really quick.

    They said the committee, composed of five partners from different offices, immediately began reviewing the case Tuesday, April 19—the day after the firm learned of the contract—and rejected it the next day.

    That timeline doesn’t seem consistent with assuming that K&S was fine with the case until bad publicity happened.

    Earlier, when Mythago suggested that K&S had never really agreed to take on the case, I asked her where her information is coming from. Now I have to ask you the same question — you seem extraordinarily certain that a certain sequence of events happened, which means that you probably think these two lawyers are lying, or at least twisting the truth. Do you really have reason to be as certain as you sound? (Or am I misreading you?)

  5. My recollection was that this was a pretty big story — at least in the legal community — when K&S took the case. It gained a new dimension when they withdrew, but it’s not like it was a nonissue until then. That’s buttressed, in my view, by the fact that very few people even thought to argue that K&S didn’t withdraw due to the controversy until this week (well after the fact).

    That being the said, I don’t think anyone is lying, I just think that this is a case where formal mechanisms that normally would have been pro forma became quite relevant when it became convenient for them to be. My suspicion of the timeline is that Clement was contacted about defending DOMA, communicated this to other partners, who congratulated him on getting a high-profile case and client (which normally is awesome for K&S). From their perspective, there are some i’s to dot and t’s to cross with respect to formalizing the arrangement (conflicts checks, for example), but nobody had any reason to suspect that this would be an issue in this case (and that’s true — with a normal client one has to worry about a conflict of interest, but in a case like this that’s generally a non-issue), but nothing that anyone thought would be an issue. Since conflicts weren’t an issue, the “review” here strikes me as very similar to, say, a board of trustees approving an honorary degree — formally part of the process, but not really meant to be a substantive review. So the news gets out, at which point K&S realizes its going to take a serious hit amongst law students, and then that formal stage becomes a lifesaver (or so they thought).

    It’s conjectural of course, but the fact that this new narrative — Clement springing the issue on the firm, which was totally shocked and had no idea — is coming out so late in the game makes me think my story is more plausible. It fits with the anomalous nature of this being the one controversial client that causes a huge PR problem (K&S, as noted, does plenty of corporate work where I’m sure they’ve represented their share of “MegaCorp dumps toxic waste into local river, children spotted with extra limbs” cases — how were they to know that this would be the issue that would get a storm of negative publicity?), the originally chicken-without-a-head behavior of all the parties, and meshes with both the story these anonymous sources are telling after the fact as well as the original narrative that drove the story.

  6. mythago says:

    David: So, in other words, you *do* think the K&S partners are lying. Because that’s the only way to make your speculation work. Bluntly, you seem to be enamored of a particular narrative – cowardly K&S partners run away from the big bad queers and retcon their story to throw Clement under the bus – and you will distort or ignore anything that might conflict with that narrative.

    The narrative you disparage is not “new”. In fact, it’s not even K&S’s narrative; Clement and his friend refer explicitly to the fact that he agreed to take a case without K&S having blessed that. The only thing that’s “new” is a more detailed explanation of how the vetting didn’t happen, and it’s consistent with both K&S’s earlier description and Clement’s statement.

    As for K&S being liberal, the whole reason HRC was up in arms is that K&S specifically promoted itself as a champion of LGBT causes – which, sorry, not “most” law firms do. (Most law firms push their “diversity” because they want to get big corporate clients whose in-house counsel care about such stuff but that’s hardly the same.)

    K&S didn’t hire Clement to bring in “conservative business”. He is an unquestionably talented attorney with a sterling resume. They hired him to be a rainmaker. That doesn’t mean they hired him to bring in business that would hurt the firm, nor did they hire him to do whatever he darn well pleased regardless of its impact on the firm. Note that K&S’s recent statement observed that Clement took the House of Representatives’ business at a reduced rate – that is very much something that a rainmaker needs to check with the rest of the firm. Telling your business partners that you’ve unilaterally decided to make less money is a little more than “dotting i’s.”

    You commented elsewhere that large law firms take on “big con law cases”. That’s not entirely true. BigLaw likes to take on pro bono cases that will make them look good and get good publicity; often these are cases involving constitutional rights, but not always. And a sweetheart deal with the Congress is hardly pro bono.

    Amp, to be clear, when I referred to ‘speculation’ earlier I didn’t mean that I was pulling thoughts out of my rear; I mean that based on how law firms work, and what K&S and Clement said, this sounded very much like a case of Clement jumping the gun before he got the final OK. Now, to be fair to Clement, he may well have assumed that his firm would rubber-stamp the deal he made on its behalf.

  7. Ampersand says:

    Mythago, I didn’t think you were pulling thoughts out of your rear. :-p I thought it was informed speculation. As I said in the post, I think this new reporting strongly suggests your thoughts were entirely on the mark.

  8. mythago says:

    Hey, I’m always happy to be told I’m right. ;)

  9. Emily says:

    I have to say this also seemed to me like the most likely scenario when the story broke. Perhaps because I first read about the withdrawal in an article that had an excerpt of the gage clause in it. I am not at all surprised that such a gag clause would cause significant INTERNAL pressure on K&S not to agree to the representation.

    I can certainly see Clement expecting it to be approved, expecting it to be beneficial to the firm. But signing a contract before getting official approval seems cavalier. And whether the process was followed might be very important to the members and employees affected by the gag clause – the process is the place where the impact of that representation on all those attorneys and support staff who have nothing to do with the actual representation (which must be in the several hundreds for a firm like K&S) is taken into account.

    It’s a lot different to hear from your employer – we know this will have some potentially negative impact on you individually, but we’ve approved it for X, Y, Z reasons and believe it will be beneficial to the firm overall – than to read in the newspaper that you won’t be able to continue to advocate your political beliefs because one partner signed a contract that you didn’t even know about until you read about it in the paper.

    It always sounded to me like an internal problem rather than the result of external pressure. If the firm had made a considered decision to accept the case, they would have been ready for external pressure, and have decided how they were going to deal with it. This came off as a scramble, which to me seems much more consistent with a lack of considered process in accepting the case/Clement going out on a limb, thinking he would have the backing of the firm, but with a faulty read on the actual opinions of other important firm decision makers.

  10. Heck, I’m even willing to see David as not entirely off the mark.

    The quote from J. Sedwick Sollers (whom Amp describes as “Clement’s ally”) seems to suggest that he was a little surprised by K&S’s decision, too.

    I wouldn’t be surprised if Clem called up his ol’ buddy Solly, who told him: “Oh, yeah! That’s awesome. Sure get it going! I don’t see us having any problems with this.” So Clement assumed that Ol’ Sollers knew what was what and started pushing bravely forth.

    Only to find out that the rest of the partners weren’t in line with Sollers. And neither was the review committee.

    But other than that totally unsubstantiated turn of events, it still sounds like the firm and partners as a whole were not given the chance to weigh in – and had they been allowed to, no one would have been terribly surprised by them saying: “Nope. Sorry. Not our bag.”

    And, since we (by which I mean me in this post and David in all of his) are engaging in totally baseless but interesting-sounding theories, who knows? Maybe Clement wanted to make a big splash from the get-go, knowing that it would make him look like more of a rock-star martyr for the conservative cause if he had to resign, and that he’d still look like a rock-star even if the company backed him.

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