Monday, April 25, 2011

If the Big Firms Are Too Precious For This Case, I'll Be Happy To Step In

And not because I relish actually winning the case.

Let's back up here. Some of you may have heard how the House of Representatives, because President Obama has refused to defend the Defense of Marriage Act, took some money from the Department of Justice's budget. This money was to be used to pay former U.S. Solicitor General Paul D. Clement, a partner at King and Spaulding, The idea was that Mr. Clement would act as the attorney for the House of Representatives who would be seeking to intervene in the case.

Gay rights groups, predictably when seeing their chance at an easy win dropping, brought pressure to bear on King and Spaulding. What was surprising was the gutlessness of the firm. Today they announced that they were withdrawing from representing the House of Representatives. The head of the firm where Clement now works, Robert D. Hays,  Jr., stated that the firm was withdrawing because "Last week we worked diligently through the process required for withdrawal,[.]...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.”

In many reports, its being stated that the real reason is that LGBT groups were putting pressure on the firm.  Mr. Hays has spent the better part of two decades defending mass tort litigation against corporate giants such as GM (defective cars) and companies which pollute the groundwater in particular and the environment in general, as well as defending claims based on recalled medical devices while championing the idea of preemption against tort cases. However, apparently the thought of someone calling him a bigot for defending a law, as opposed to being a corporate shill who seeks to deny compensation for people and communities damaged by corporate greed, was too much for him and others in the partnership. So they withdrew the firm from representation.

Maybe the only one with any moral fiber in the higher echelons of King and Spaudling in Mr. Clement. He has resigned from the firm in protest over the action by his partners. In his letter,which was released, he stated,
...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. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize  any representation for one side of a legal controversy are  a profound threat to the rule of law. Much has been said about being on the wrong side of history. But being on the right or wrong side of history on the merits is a question for the clients. When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.
There is more to the letter, but that paragraph right there sums up what law this is about for lawyers.

When it seemed this would be a half million dollar fee earner for the firm this year, there seemed to be no problem for the leaders of King and Spaulding. But once it got uncomfortable, they showed their true colors and abandoned ship.

For our system to work, there has to be lawyers willing to defend both side of the argument. King and Spaulding only seems to remember this when, apparently, when the cause is politically acceptable in certain sectors (e.g. defending terrorist detainees at Guantanamo). But its not just when the client is a cause celebe or a heart strings case. Sometimes the unpopular position has to be defended or represented because otherwise the system breaks down.

John Adams, one our early patriot leaders and later the second President of the United States, knew this. He was the man who accepted the job of defending the British soldiers accused of murder in the Boston Massacre. He had to defend these men in a court in a town which had become vehemently anti-British  and vehemently anti-army as a result of the Massacre and other legislation passed by Parliament. He did not defend the British soldiers because he liked them. Adams was already one of the leading Patriots in Boston at the time. He took the case because it ensured that the system would operate freely and fairly. When he recevied threats he did not back down, he did not quit on the British soldiers. He fought the case out to verdict.

Apparently King and Spaulding are not cut from the same moral or ethical cloth as John Adams.

If the House of Representatives is willing to go with a solo, I'd take the case. Not because its a law I think should be on the books, but because our system of justice demands that it be defended.

No comments: