{"id":13289,"date":"2011-05-17T11:32:46","date_gmt":"2011-05-17T18:32:46","guid":{"rendered":"http:\/\/www.amptoons.com\/blog\/?p=13289"},"modified":"2011-05-17T11:58:50","modified_gmt":"2011-05-17T18:58:50","slug":"ks-followup-ks-never-accepted-doma-as-a-client-lawyers-claim","status":"publish","type":"post","link":"https:\/\/amptoons.com\/blog\/?p=13289","title":{"rendered":"K&S Followup: K&S Never Accepted DOMA As A Client, Lawyers Claim"},"content":{"rendered":"

[Crossposted at Family Scholars Blog<\/a>]<\/em><\/p>\n

Two weeks ago, I blogged about<\/a> King & Spalding’s decision not to defend DOMA. In comments at my blog, Mythago wrote:<\/p>\n

You\u2019re 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<\/em>. In other words \u2013 and Clement has not disputed this, to my knowledge \u2013 this is a situation where a senior partner went off and got a client, didn\u2019t run it by the firm first, and the firm decided \u2013 as it does with all cases it\u2019s considering taking on \u2013 that they didn\u2019t want this one.<\/p>\n

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 <\/em>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.<\/p><\/blockquote>\n

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

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.<\/strong><\/p>\n

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.<\/p>\n

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. […]<\/p>\n

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\u2014the day after the firm learned of the contract\u2014and rejected it the next day.<\/strong><\/p>\n

“The firm did not back out. We never agreed to take it,” said one of the King & Spalding lawyers.<\/strong> […]<\/p>\n

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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

“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. […]<\/p>\n

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.<\/p><\/blockquote>\n

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 <\/em>Clement accepted it.<\/p>\n

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

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. <\/p><\/blockquote>\n

So even Clement’s ally admits that the “standard client\/matter review” didn’t occur. And Clement’s resignation letter<\/a> 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.<\/p>\n

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.<\/p>\n","protected":false},"excerpt":{"rendered":"

[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\u2019re treating this as a situation where K&S agreed with the House of Representatives … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[135,112],"tags":[],"class_list":["post-13289","post","type-post","status-publish","format-standard","hentry","category-crossposted-on-tada","category-same-sex-marriage"],"_links":{"self":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/13289","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=13289"}],"version-history":[{"count":2,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/13289\/revisions"}],"predecessor-version":[{"id":13293,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/13289\/revisions\/13293"}],"wp:attachment":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=13289"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=13289"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=13289"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}