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Tuesday, April 26, 2011

King & Spalding's craven ethical collapse in withdrawing from a politically controversial representation

During a period of brief temporary insanity near the end of the 20th Century, I considered returning to the BigLaw corporate litigation practice. I was privileged to be granted a job interview with a partner from the then-new Houston office of Atlanta-based King & Spalding.

The firm enjoys an excellent reputation as one of America's top law firms, and it would be on anyone's short list of prestigious big firms headquartered in the American south. My occasional brushes with its lawyers during my dozen years of BigLaw practice — typically on big cases in which it and my then-firm represented cooperative co-defendants — gave anecdotal confirmation that reputation was justified.

The firm did not offer me a job, which I quickly realized was fortunate for them and me both. I nevertheless enjoyed the interview, and I particularly remember one particularly frank theme of it: The firm's Houston office was expected to parallel the entire firm's practice areas and client list, specifically including its long-standing and sometimes controversial representation of corporate clients considered socially toxic (and sometimes literally toxic). This included, prominently, tobacco companies, asbestos companies, pharmaceutical companies, various other chemical and industrial companies, and so forth.

I was asked — forthrightly and appropriately — whether that would give me any moral or ethical problems. I said I'd represented lots of target defendants in the past, often in hostile venues. I said that I was secure in my own ethical compass and integrity, and thus not over-concerned that I might be subverted into any impropriety by any client or colleague. I said that I believed in my own ability to stick to the rules in an adversary system which permits even the wicked to hire the best advocates available. I explained my appreciation, from past experience, that a lawyer has parallel but distinct duties: He or she must act as a zealous advocate for clients in public. But he or she must also serve as a private counselor, which includes helping troubled companies comply with their legal obligations and resolve their disputes on fair terms.

These were truthful answers, and I believe the same things today. These things are fundamental premises for anyone who aspires to be any client's champion in our adversary system.


I was reminded of that interview yesterday upon reading of the circumstances of Paul Clement's resignation as a partner in King & Spalding's Washington office. (Yes, besides litigation, that branch office exists in part to lobby for many of those same toxic companies.) My reaction to the story was surprise, then dismay and disappointment. Clement is a star who will prosper wherever he practices. And I'm sure there must be many K&S lawyers, including many partners, who'd have rather seen handled things differently in hindsight. But the firm's management speaks for the firm, and the downstream lawyers' ratification, reluctant or otherwise, is more or less implicit in their continuing to show up for work every day.

Paul Clement during his time as U.S. Solicitor General

King & Spalding now owns this precedent. It has raised a white flag of surrender, rather than stick to its commitment to this particular controversial client. Therefore its commitment and resolve with respect to any and every controversial client in the future must be weighed against this betrayal.

I never thought I'd have occasion to use the word "gutless" to describe King & Spalding or any of its partners. But yeah, that's the one that fits. It's hardly an Atticus Finch moment for the old firm.


And then I came upon this blunt and provocative assessment from Glenn Reynolds:

Just remember: King & Spalding is now responsible for the views of any client it chooses to represent, now that it’s clear they’re being vetted for political correctness.

Maybe K&S' client list has changed radically since my interview back then. Casual googling and the current firm website suggest not, however. If someone's more curious and diligent than me, there's always PACER. The firm has a genuine claim to a national practice in both trial and appellate courts, state and federal — so there would be lots of courthouses to check.

"Oh," you may say, "there are differences among these noxious clients. Some are much worse than others." And that is true. But the time to consider those differences — the time to decide whether conflicts or mere "taste" issues would interfere with diligent representation — is before agreeing to take on the particular case and client.

As a lawyer, the whole concept of being a fiduciary necessarily implies that you've weighed, and resolved, any moral, ethical, or other personal subjective issues before you accepted the representation. Thereafter, you reserve and suppress your personal judgments, and you scrupulously guard against their potential interference with the objectivity and diligence you owe each client.

Once a lawyer and his firm have agreed to be hired, and have indeed been hired, and have publicly announced as much, and have thoroughly embarked upon their representation of that client in that matter, both lawyer and firm are ethically and morally committed. Neither firm nor lawyer is free to disavow their commitments to controversial clients on grounds that the firm no longer likes being involved in the particular controvery which brought the client to them in the first place. That would be like the doctor who's supervising your chemotherapy suddenly deciding, mid-infusion, that "Chemicals are icky!" and jerking the needle that could save your life out of your arm.

How much damage will this do to King & Spalding in the long run? As trial lawyers here in Texas are wont to say: "That gun kicks as hard as it shoots, pardner." King & Spalding will survive, and may thrive, but I suspect it will come to regret pulling this particular trigger.


Note to commenters: Please stay on or near the topic of K&S' reversal of its original commitment to represent the Bipartisan Legal Advisory Group of the United States House of Representatives in defense of Section III of the Defense of Marriage Act. That doesn't require long arguments about the merits of that defense, the constitionality of DOMA, federalism, or the propriety of gay marriage in general; save that for other posts, please. This post is about legal ethics, and the fact that the issue arises out of this particular context isn't especially material because, yes, it could just as easily instead be about tobacco, guns, asbestos, lead paint, et cetera — and we're not going to debate any of those in connection with this post either.


UPDATE (Tue Apr 26 @ 8:10 a.m.): I've blogged before about John Adams and his famous representation of the British soldiers who committed the "Boston Massacre." But for another example of a famous lawyer championing controversial causes or clients, ponder this historical factoid and its potential relevance:

The lead appellate lawyer who defended segregated schools before the Supreme Court in the consolidated appeals decided by Brown v. Board of Education — the lawyer who lost to Thurgood Marshall — was John W. Davis of New York City's Davis, Polk & Wardwell. William Henry Harbaugh's Lawyers Lawyer: The Life of John W. Davis is among the best portraits of a practicing trial and appellate lawyer that I've ever read. And every time I pass the old Rice Hotel in downtown Houston, I'm reminded that the Democratic Party nominated Davis as its presidential candidate during its convention there in 1924.

A legendary figure in his day, Davis argued before the U.S. Supreme Court 140 times. And either in Harbaugh's book or elsewhere, I recall reading that Marshall did not begrudge Davis his role, and indeed, that Marshall said it was appropriate that such an important case be championed by the best advocates available in order that the resulting decision have its maximum credibility.

Perhaps you believe that the DOMA is as repugnant as school segregation and Jim Crow. If so, then, you may think that Paul Clement today occupies a role comparable to Davis' in Brown. Were he alive to do so today, though, Thurgood Marshall would patiently explain to you that it is precisely their steadfast performance of their duties to even controversial clients that made Davis, and make Clement, a "lawyer's lawyer."

Posted by Beldar at 06:00 AM in Ethics, Law (2011), Trial Lawyer War Stories | Permalink


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(1) Beldar made the following comment | Apr 26, 2011 7:07:24 AM | Permalink

Anticipating one question: No, I don't think that the BLAGUSHR ought to sue King & Spalding. No one has suggested that K&S committed a material breach of contract, nor is any such claim likely. I'm confident the engagement was "at will" or close to that — probably on a standard hourly-rate plus expenses basis — and that either K&S or the Group could probably walk away at almost any time (perhaps subject only to some advance notice requirement), and for any reason or no reason at all. Clement will still be the Group's lawyer, and neither he nor the Group will want for resources. If Clement did work for which K&S was paid, the Group presumably received fair value for that. So the Group almost certainly has no legally recoverable damages either.

Anticipating another: No, I can't refute the proposition that this post is based on spite because I didn't get a job at K&S more than a decade ago. I've disclosed that, and if you use that fact to jump to that inference, you're entitled to disbelieve or disagree with whatever I say about the firm.

(2) A.S. made the following comment | Apr 26, 2011 8:03:16 AM | Permalink

I don't think suing is an appropriate response. But I note this from your post: "Yes, besides litigation, that branch office exists in part to lobby for many of those same toxic companies."

Are Republicans (or, heck, Democrats) obliged to welcome King & Spalding lobbyists into their offices? I don't think there is any such obligation. If I was a Congressman, I would cancel my meetings with King & Spalding lobbyists and send out a release that states that they are no longer welcome in my office.

(3) Beldar made the following comment | Apr 26, 2011 8:38:01 AM | Permalink

A.S. (#2), I don't think King & Spalding will ever find their lawyer-lobbyists excluded from access to people on Capitol Hill.

In the past, though, for example, while at King & Spalding, Clement has represented the NRA before the Supreme Court. That sort of client might otherwise have considered hiring K&S even without him -- he's not their only star by any means, and once again, look at the rest of their client list (the NRA fits right in). But I doubt the NRA would consider hiring K&S now.

(4) Linus made the following comment | Apr 26, 2011 10:36:52 AM | Permalink

I agree that it looks bad for them to disavow a controversial client halfway through representation, because it is looks like craven cowardice. I mean, they should have known and made that determination beforehand—it's not cowardly to refuse representation. But I think of my own practice, where it became clear over the course of my initial representation that my client was a creep and lying to me as well, and I get out. I've even been accused of cowardice in that situation myself ("you're just afraid of her attorney!"), when the truth is that a client you know is lying to you is just a powder keg waiting to blow your hands off.

But even in those situations, I withdraw from representation quietly, with as little detail as the court will allow. Why trumpet your reasons for withdrawal? In this case, that's a rhetorical question.

(5) VR made the following comment | Apr 26, 2011 10:39:30 AM | Permalink

Aren't we missing some information here? Given the very fast turnaround time (one week), this screams to me of someone signing the client on (maybe Clement, maybe not) without proper authorization, and the bigwigs then getting out immediately. Clement's letter makes an interesting reference to "believed he had the full backing of the firm." That implies that he did not in fact have that backing, and maybe he signed the papers without doing all the checking he had to? (I do not work for BigLaw, so perhaps I am demonstrating my ignorance as to how these things work--please be gentle!)

I would want to know what went on interally before making a big judgment on the firm's conduct here. Clement says he would not have taken the client if he did not believe he had the full backing of the firm--why does he say that? was he mistaken? was he in fact authorized to accept a client of this nature?

I think we are simply missing too much of the puzzle (which we may never get, due to it being interal firm stuff).

(6) A.S. made the following comment | Apr 26, 2011 10:53:35 AM | Permalink

Beldar (#3): Why do you say that you don't think that K&S "will ever find their lawyer-lobbyists excluded from access to people on Capitol Hill"? That surely is a decision that Congressmen can make. If Congressmen are angry enough about K&S's decision, why wouldn't they? I'll mention that, although I am a member of a BigLaw firm with a DC office, I don't have any knowledge of how these lobbying practices work. That said, I certainly do have knowledge of how clients and BigLaw partners work - and if the clients are not happy because their lobbyists don't have access, the partners will make noise within the firm or will go to another firm.

BTW, let me add that this is not a novel idea. I posted it here at your blog at 8:03 am. Ed Whelan posted the same idea at National Review at 10:18 am, here: http://www.nationalreview.com/bench-memos/265614/re-king-spalding-s-cowardice-and-paul-clement-s-courage-ed-whelan

(As Instapundit might say: Advantage: A.S.!)

(7) Whitehall made the following comment | Apr 26, 2011 11:38:11 AM | Permalink

Wasn't the "client" the US House of Representatives? While we may think its former or current members are less than reputable, it is one of the fundamental institutions of our Republic.

What is the missing part of "vetting" - forgot to read the US Constitution?

First the bench was politicized, then the US Attorney-General's office, now the legal profession.

"Tolerance for me but not for thee" will NOT work in our civil society and we can't allow an activist minority to impose its beliefs and positions upon the rest of us by attempting to muzzle our defenses though coercion.

My goodwill towards the gay community just took another hit.

(8) ech made the following comment | Apr 26, 2011 4:12:51 PM | Permalink

One of the supposed stumbling blocks was a gag provision in the agreement. Althouse has a quote from TPM that says the agreement said employees "... will not engage in lobbying or advocacy for or against any legislation [to] alter or amend in any way the Defense of Marriage Act". This was seen as controversial. One of the partners is chair of a gay rights group in Atlanta.

Now, IANAL, but it would seem to me that if you have been hired to defend a law before SCOTUS, you would raise ethical concerns if you advocated for changes to the law. Either way - strengthing it, weakening/abolishing it would seem to me to be a problem.

(9) ColoComment made the following comment | Apr 26, 2011 4:22:08 PM | Permalink

"believed he had the full backing of the firm."

How funny: I read that phrase and interpreted it to mean that Clement had probably spoken with all or some of the managing partners and had gotten their buy-in. Only to find later that someone had changed his mind in the face of adverse publicity.

It's interesting what it says about our current culture that K&S (among other firms) was lauded for its pro bono representation of Gitmo detainees, but is castigated for its representation of the U.S. House of Representatives in a matter involving a law passed during the Clinton administation.

Life is passing strange....

(10) VR made the following comment | Apr 26, 2011 8:19:40 PM | Permalink

#9 ColoComment

That may very well be what he meant by that phrase--it's ambiguous. What he most certainly did NOT say was "this client was approved by the firm using the standard approval process" or anything remotely like that. Nor does he say who (if anyone) he spoke with that approved it. (Maybe he cannot say, maybe he is bound not to reveal inner firm discussions by his partnership agreement---I'm not trying to attack Clement here.)

But what's striking to me is how fast this happened. One week. Given that there are several steps to go through here, including (if I'm not mistaken) getting the approval of the court to withdraw once entered, it sounds to me like they started the withdrawal process almost immediately. Since there was not much time for any outside pressure to take effect, that sounds like the decision was not based entirely on outside pressure. It sounds more like the firm (or at least some of the bigwigs there) hit the roof when they found out he signed up for this.

What we don't know is whether or not Clement was really authorized to bind the firm here. Not knowing that, I am hesitant to attack the firm. (Although I must state again, as I did above, that I am not at a BigLaw firm--I am not wise in their ways, I ran from them when they came recruiting and hid under my bed until the scary people were gone, and I may be missing something here about the way they generally work.)

Anywho, can Beldar or anyone else enlighten on the usual process for taking a new client of this nature at a BigLaw firm?

P.S. I am aware of the fact that the HRC (Human Rights Commission, a gay rights group) is trying to take credit for pressuring K&S to drop out. I don't buy it. The HRC is a loudmouthed paper tiger that no one is afraid of---they are totally ineffective, but like to take credit for the sun rising in the east. (I say this as a strong gay rights advocate who is often frustrated with HRC.) They're simply not good enough to win this kind of fight. Not to say they did not do the things they said (making phone calls), but I am skeptical that it had any effect.

(11) VR made the following comment | Apr 26, 2011 8:22:42 PM | Permalink

And I forgot to add, that I can't see this as such a big deal, given that it is so early in the process, the client was in no way prejudiced, et cetera. (This is not the same as withdrawing the week before trial, or right as the briefs are due.) When you withdraw makes a big difference, and here it is so early that even if Clement had not left the firm to stick with the case, the House had plenty of time to secure new counsel and were not harmed.

(12) VR made the following comment | Apr 26, 2011 10:22:38 PM | Permalink

Sorry for the third post (I'd edit the old comments, but that does not appear to be an option), but the discussion in this thread at the Volokh Conspiracy actually deals with a lot of my questions.

I will note that some of the commenters (who at least claim to be BigLaw types) agree with my take on the situation. I myself, like Sergeant Schulz, still know nothing.

(13) Gregory Koster made the following comment | Apr 27, 2011 2:22:18 AM | Permalink

Dear Mr. Dyer: The difficulty I have is this:

a) you write, "My reaction to the story was surprise, then dismay and disappointment."

and then you write b):

"Once a lawyer and his firm have agreed to be hired, and have indeed been hired, and have publicly announced as much, and have thoroughly embarked upon their representation of that client in that matter, both lawyer and firm are ethically and morally committed."

The key phrase is of course "ethically and morally committed." Translated into English, this means "Don't sell clients out for nothing." It's difficult to take the outrage K&S's action has generated in legal circles seriously. Are K&S going to be indicted, tried, and heaved into the jug? Nope; that's where the "ethically and morally" loophole comes in. The outrage can't be real in a system, where, say, if I was called in as a prospective juror, asked if I knew the defendant, said no, and then a week later said oh yeah, I do. Would moral outrage be sufficient to deal with my actions here? Hardly; I'd be tossed into the jug for my offense, with a great deal of sanctimonious preaching about my duties and the horrors of lying to the legal profession.

Failing the punishments of law, how about the ethical sanctions the Bar can invoke? Are the K&S partners going to clapped into the stocks on Capitol Hill, while facing a mob of angry Congressmen hurled jelly filled balloons at them and the leaders of the Bar sniff and say "Serves you right."? No. No I don't think so. As for K&S losing business, for every client that deserts them, the Left will bring two more in, in the manner of Coca-Cola. Check the K&S client list today and again next year. It may be different---but the billings won't be any less. As for recruitment troubles because of this action, the Ivy League is packed with liberal bigots who will steer their newest fanatics to K&S's door. K&S may change, but it won't be hurt. Not financially, and certainly not in prestige. If brains count for anything, K&S has just about as many as it did yesterday. At most what has and will happen to K&S can be summed up by James Fisk's Jr's comment after losing the Erie War : "Nothing is lost boys, save honor."

Clement comes out looking rather foolish too. He trusted his partners, lawyers all, and what happened?

This is harsh stuff, and I couldn't blame you if you sent some jelly filled balloons my way. Yet I'll suggest your sincere convictions about the ethical demands of lawyering are one of the reasons you got out of Big Law. For all the bawling Big Law does, whenever skullduggery is afoot, there you will find Big Law, trying, in William Haddad's phrase, to be the lawyer for the guys who are trying to f**k everyone.

As for Davis, the man was a hollow fraud. Harbaugh, having written a splendid biography of Theodore Roosevelt, decided to shrink himself and concentrate on footnotes, i.e. Davis. It's worth noting that for all the howling about Davis's appellate skills, he, as Woodrow Wilson's Solicitor General, 1913-18, snored away over a) the forced resegregation of government employment that Wilson enacted, b) the assault on civil rights that the notorious Espionage Act of 1917 enacted c) the colossal thieving that went on in war contracting in that era. When the stench from the Wilson war effort got too much, Davis had himself appointed as ambassador to Great Britain, leaving Eugene Debs in jail, but rising and rising. You can find out more about this hollow man's career by reading H.L Mencken's articles on Davis the 1924 Demcoratic presidential candidate in A CARNIVAL OF BUNCOMBE. An apt description of this entire episode.

Sincerely yours,
Gregory Koster

[Edited for profanity per the blog's PG-13 guidelines. — Beldar]

(14) Jeff made the following comment | Apr 28, 2011 3:22:49 PM | Permalink

I don't think they'll get the chance to turn tail and run from a signed client in the future ... my bet is they will have alot less clients willing to give them that chance ... face, say goodbye to your nose ...

(15) Beldar made the following comment | Apr 28, 2011 4:55:29 PM | Permalink

Mr. Koster, the ethical requirements of the profession do not themselves vary based on the size of the firm, but the fact settings from which ethical issues arise tend to be very different. Practicing with a big firm means that you're presented with ethical questions much more frequently, and often with imperfect information. I still do a "conflicts check" whenever I take on a new client, but it takes me at most a couple of minutes of quiet study of my own client list. Big firms, by contrast, have standing committees and employ staff whose full-time job is information-gathering for that process. You're right that I don't miss having to devote time and mental energy to those questions as often as I did when I was at big firms, but you're wrong in suggesting that that was one of the reasons I left the BigLaw practice.

K&S' reputation has sustained what I think will be a lasting injury in the eyes of those who understand and value legal ethics.

I agree with you that that's a limited portion of the total number of people who have an opinion about the firm. And I've never predicted that their remaining partners are going to miss any meals. But I would certainly take this incident into account, for example, before ever referring anyone to King & Spalding. And they have a paying clientele that has considerable reason to value ethical independence; it's the "toxic companies" who ought to be most worried about lawyers with over-flexible ethics.

Before this incident, for example, I would not have remotely considered calling King & Spalding "gutless," and would have argued with anyone who did. In my world, that's a pretty serious indictment of a lawyer or law firm, and no one wants a "gutless" lawyer, do they? Those who continue using, or now hire, K&S will be doing so in hopes that this incident was an outlying exception, and that's probably a reasonable expectation, but it's surely not as confident an expectation today as it would have been last month.

(Remember too that I keep a PG-13 atmosphere. I swear like a sailor in my personal conversations, and I know it makes me a bit of an old maid here, but it's my preference for the tone of this blog.)

(16) ColoComment made the following comment | Apr 28, 2011 6:45:48 PM | Permalink

(12) VR: thanks for the steer to Volokh. I hadn't been there in a while & didn't know they had exhaustively discussed the matter. I've now scrolled and skimmed down through VC's most recent post and 260+ comments and am thoroughly tired of the whole deal & couldn't care less about it.

DOMA will get an excellent defense; K&S will, or will not, be branded for its flip; Clement, I think, resolved the issue with reasonable discretion (and we'll probably never know whether he did or did not comply with K&S's internal procedures). All's well that ends well.

Beldar, I like the PG-13 standard; it preserves a higher tone to the conversation.... A goodly portion of the blog world tends to coarseness, and I've taken to avoiding blogs with un-moderated comments, even where the substance may be worthy.

(17) Beldar made the following comment | Apr 28, 2011 7:12:52 PM | Permalink

To VR & others: I don't accept Talking Points Memorandum, its originator, or its contributors as reliable investigators and reporters of facts, and even they don't pretend to be unbiased. On an issue like this one, I'm especially disinclined to treat anything written there as gospel.

Some of what they're peddling shows marks of heavy spinning, and I just don't trust it.

In general I can say this: Resolving both formal ethical conflicts of interest and less formal "taste" issues have become much more complicated as law firms have grown larger and tended toward offices in many cities. Washington offices, in particular, are particularly likely to create these issues in abundance because of their lobbying and appellate concentrations. BigLaw firms have increasingly developed internal systems designed to flag potential problems. How much vetting goes on varies from firm to firm and from time to time, but the general trend is toward a more thorough vetting with more complex procedures.

Even within a single firm, exigent circumstances — for example, an impending emergency TRO hearing on a lawsuit that the prospective client(s) didn't know about six hours earlier — may require exceptions. But this wouldn't seem to be an example of that.

If Clement deviated from K&S protocols, then at the latest, that ought to have sparked complaint from other partners in the firm as soon as the representation became public knowledge. That it (apparently) only became an issue when particular clients — who were themselves being threatened with boycotts by advocacy groups — voiced their concerns suggests to me that the fault doesn't lie here with Clement, but with those at the firm who checked off on the representation to begin with, and who presumably changed their minds about whether the risks of backlash outweighed the benefits of undertaking the representation.

K&S appears (from its name and my quick glance at its website) to still be a general partnership, and as one of its general partners, Clement (like every other general partner) had at least apparent authority to bind the firm. BigLaw partners (or "principals" or "shareholders" or however else their ownership interests are structured) are keenly aware of the danger of deviating from what's been established as the norm for any given firm, however, and it strikes me as extraordinarily unlikely that he would have ignored whatever protocols the firm has for vetting new clients and matters.

(18) Jonathan Sadow made the following comment | May 2, 2011 11:42:31 PM | Permalink

Beldar wrote

In the past, though, for example, while at King & Spalding, Clement has represented the NRA before the Supreme Court. That sort of client might otherwise have considered hiring K&S even without him -- he's not their only star by any means, and once again, look at the rest of their client list (the NRA fits right in). But I doubt the NRA would consider hiring K&S now.

You called it.

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