Paul Clement, the conservative lawyer and former US solicitor general representing the US House of Representatives in its attempt to preserve the Defense of Marriage Act, is sticking by his client even though his law firm wouldn’t. And the move has won him support even among lawyers who disagree with the statute, which defines marriage as being only between a man and a woman.
In his resignation letter sent this morning to his now former firm King & Spalding, Clement wrote: “I resign out of the firmly held belief that a representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do.”
Asked to comment on its decision to back out of defending the Defense of Marriage Act and the subsequent departure of its highest-profile partner, King & Spalding is sticking only to a short and rather opaque e-mailed statement. Sent by a spokesman and attributed to King & Spalding’s chairman Robert Hays Jr., it reads: “In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate. Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created.”
So the firm is dodging the perception that the choice to abandon the DOMA defense is an effort to save its own reputation. But it’s incredibly hard to believe any other explanation. Large firms such as Atlanta-based King & Spalding, which has nearly 800 lawyers, are always concerned about supporting diversity. Offering a work environment that’s friendly to people from all backgrounds and communities is key to keeping clients happy, as well as to recruiting and retaining talent. Like most big firms, King & Spalding has an entire page on its Web site devoted to diversity.
The law firm has been under intense scrutiny since Clement took on the lead role last week in defending the law, with gay-rights groups such as the Human Rights Campaign promising to go after it.
And Clement, who has now joined the boutique law firm Bancroft, has plenty of support among his peers in the Washington legal community. Theodore Olson, the prominent Republican attorney who made headlines when he agreed to challenge California’s same-sex marriage ban, praises Clement’s “abilities, integrity, and professionalism.” Olson, who like Clement was a solicitor general during the George W. Bush administration and is a star Supreme Court advocate, tells Washingtonian.com, “I think it’s important for lawyers to be willing to represent unpopular and controversial clients and causes, and that when Paul agreed to do that, he was acting in the best tradition of the legal profession.”
Seth Waxman, a partner at WilmerHale who served as solicitor general during the Bill Clinton administration, agrees. “I think it’s important for lawyers on the other side of the political divide from Paul, who’s a very fine lawyer, to reaffirm what Paul wrote. Paul is entirely correct that our adversary system depends on vigorous advocates being willing to take on even very unpopular positions. Having undertaken to defend DOMA, he’s acting in the highest professional and ethical traditions in continuing to represent a client to whom he had committed in this very charged matter.” Waxman’s firm is fighting against DOMA in one of the lawsuits challenging the statute.
There are countless examples of law firms taking on and standing by controversial clients, even at the risk of their public images. In a recent interview with Washingtonian.com, just as one example, White & Case partner Carolyn Lamm talked candidly about her decision to represent Libya.