DOMA Law Firm Ditches Case, Top Lawyer Paul Clement To Defend Law With Another Firm [UPDATE]

This story has been updated.

WASHINGTON -- Law firm King & Spalding announced Monday it will not defend the Defense of Marriage Act on behalf of the U.S. House of Representatives. Afterward, Paul Clement, the partner who had taken the case, announced he intends to defend the law with another firm.

"Today the firm filed a motion to withdraw from its engagement to represent the Bipartisan Legal Advisory Group of the House of Representatives on the constitutional issues regarding Section III of the 1996 Defense of Marriage Act," King & Spalding chairman Robert D. Hays, Jr. said in a statement. "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," he continued. "Ultimately I am responsible for any mistakes that occurred and apologize for the challenges this may have created."

Shortly after the firm announced that it would no longer take the case Paul Clement, former solicitor general under President George W. Bush and the partner charged with leading the firm's defense, submitted his letter of resignation to Hays, which was obtained by The Huffington Post.

Clement will be joining Bancroft PLLC, according to a press release from that firm, which is led by former Bush administration officials. Viet Dinh, who was an assistant attorney general from 2001-'03, is a founding partner, and H. Christopher Bartolomucci, who served as an associate counsel to President Bush between 2001-'03, is a partner.

"Paul has argued 53 Supreme Court cases and knocked them out of the park," Dinh said in a statement. "He earned the respect of all the Justices and wowed the bar. Clients trust Paul and Bancroft with their biggest cases and toughest problems. Paul is a perfect fit with Bancroft, where we are building the next great law firm."

In his resignation letter, Clement stated that he will continue to represent the House on the case while at Bancroft.

"My thoughts about the merits of DOMA are as irrelevant as my views about the dozens of federal statutes that I defended as Solicitor General," he wrote in the letter. "Instead, 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."

Brendan Buck, spokesman for House Speaker John Boehner (R-Ohio), said House leadership were pleased that Clement would still be representing the House. "The Speaker is disappointed in the firm’s decision and its careless disregard for its responsibilities to the House in this constitutional matter," said Buck in a statement. "At the same time, Mr. Clement has demonstrated legal integrity, and we are grateful for his decision to continue representing the House. This move will ensure the constitutionality of this law is appropriately determined by the courts, rather than by the President unilaterally."

King & Spalding Director of Communications Les Zuke said of Clement's resignation: "We're sorry to see Paul Clement leave. He's been a good partner, and we wish him the best."

Clement said that he has known the Bancroft partners for more than 20 years.

"They put clients first and deliver results," he said in the statement. "Bancroft offers its clients premier talent, without all the baggage of a mega firm. We are shaking up the D.C. legal establishment.”

King & Spalding came under intense criticism from LGBT rights advocates last week after Boehner announced that former Bush solicitor general Paul Clement, a partner in the firm, would be defending the law that defines federal marriage as between one man and one woman. The firm would receive as much as $500,000 for their work on the case, according to documents obtained earlier by The Huffington Post.

Jon Davidson, legal director of Lambda Legal, the nation's oldest and largest legal organization working for LGBT equality, told The Huffington Post that defending the law would likely hurt King & Spalding's effort to recruit lawyers. He added that he would also be no longer comfortable working with the firm on cases.

"As legal director, I would take the position that we should not use them as cooperating attorneys with us -- that is, people who work with us on a pro bono basis in cases," said Davidson. "I wouldn't want to team with them, so long as they're actively harming our community by defending DOMA."

For some gay rights advocates, the most troubling part of this situation was a clause in the contract signed between King & Spalding and the House that barred the firm's employees from engaging in any advocacy to "alter or amend" DOMA.

D'Arcy Kemnitz, the executive director of the National LGBT Bar Association, said that her group could potentially reevaluate whether King & Spalding would be welcome at its annual career fair -- an event that the firm bragged about participating in on its "LGBT Lawyers" website.

Boehner's decision to have the House intervene and defend DOMA came after Attorney General Eric Holder announced in February that the administration would no longer argue in support of the law after it concluded that the law is unconstitutional.

Last month, a five-person House Bipartisan Legal Advisory Group voted along party lines (3-2) to direct the House General Counsel to initiate a legal defense of DOMA.

Last week, Boehner requested the Justice Department hand over "the funds it would have otherwise expended defending the constitutionality of DOMA."

"Leader Pelosi shares Mr. Hays' apparent concerns with the lack of transparency and accountability in the way this contract was signed." Drew Hammill, spokesman for House Minority Leader Nancy Pelosi (D-Calif.), said in a statement. "She also vigorously opposes using half a million taxpayer dollars or any taxpayer resources to defend discrimination, at a time when Republicans in Congress are cutting critical initiatives like education and infrastructure. It is now more critical than ever that Speaker Boehner fully account for his decision to sign this half million dollar contract to defend this indefensible statue."

Before Clements announced he would switch firms to defend the law, Joe Solomnese, president of the Human Rights Campaign, praised King & Spalding for leaving the case. "King & Spalding has rightly chosen to put principle above politics in dropping its involvement in the defense of this discriminatory and patently unconstitutional law. We are pleased to see the firm has decided to stand on the right side of history and remain true to its core values," he said.

Richard Socarides, president of Equality Matters, responded to Mr. Clement's assertion that lawyers should defend unpopular opinions: "Mr. Clement's statement misses the point entirely. While it is sometimes appropriate for lawyers to represent unpopular clients when a important principle is at issue, here the only principle he wishes to defend is discrimination and second class citizenship for gay Americans."

Clement's resignation letter:

UPDATE -- 1:45 p.m.: The lead sponsors of the Respect for Marriage Act to repeal DOMA -- Reps. Jerrold Nadler (D-NY), Tammy Baldwin (D-WI), Jared Polis (D-CO) and John Conyers (D-MI) issued a statement on King & Spalding's announcement:

King & Spalding's withdrawal from their representation of the Bipartisan Legal Advisory Group of the House of Representatives is yet another blow to House Republican Leaders’ efforts to defend DOMA in court. Whatever the firm's reasoning -- whether they now agree with the President and Attorney General that the law is legally and factually indefensible or have decided that defending DOMA is unacceptable to many of their partners and employees -- their withdrawal confirms what is increasingly obvious: it is patently wrong to defend this harmful law. Congress should pass the Respect for Marriage Act and repeal DOMA once and for all.

UPDATE -- 4:21 p.m.: The Stonewall Bar Association of Georgia, issued a statement today applauding King & Spalding's decision to drop the DOMA case. The situation was especially tricky for Stonewall, since the firm was a long-time sponsor of the group.

According to the statement, Stonewall's vice president/president-elect Robert Lewis wrote to the firm's chairman Robert Hayes and diversity committee chair Sam Matchett once news broke about King & Spalding's involvement. Lewis requested that the firm terminate its contract with the House and "recommended that King & Spalding take affirmative actions to demonstrate its commitment to diversity and the rights of LGBT individuals."

Stonewall confirmed to The Huffington Post that Lewis will be meeting with Matchett Monday afternoon to thank him for the firm's decision and discuss its commitment to diversity moving forward.

Comments

[KenClay]

02:30 PM on 04/29/2011

Stay Out of OUR Bedrooms..

[KenClay]

02:30 PM on 04/29/2011

JOBS JOBS JOBS..... it's That Simple!

[idyllick]

12:57 PM on 04/29/2011

"She (Pelosi) also vigorously opposes using half a million taxpayer dollars or any taxpayer resources to defend discrimination, at a time when Republicans in Congress are cutting critical initiatives like education and infrastructure. It is now more critical than ever that Speaker Boehner fully account for his decision to sign this half million dollar contract to defend this indefensible statue."

Once again, Pelosi proves she is the adult in the room.

What happened to "cut unnecessary spending" TPGOP?

[KenClay]

12:35 PM on 04/29/2011

Leave us Gays Alone... Go feed the poor...

[truth be told again]

01:20 PM on 04/27/2011

Still waiting for a reply - from ANYONE - as to how a law that EXEMPTS ITSELF from provisions of the Constitution could be considered "Constitutional" in the first place.

[MJinCanada]

01:10 PM on 04/27/2011

I hope Bancroft loses a lot of clients.

[Inkosi]

09:36 AM on 04/27/2011

Flash - in New Jersey - they have now ligislated the sex life of chickens. I am not kidding. Roosters are only allowed in the hen house to copulate with the hens 10 days out of a month.... (with benefit of marriage). So why are you suprised they are trying legislate your sex life???? Will it never end???

[KenClay]

10:13 PM on 04/26/2011

Leave us Alone..

[Bob Kellerman]

07:25 PM on 04/26/2011

The GOOD NEWS is that a reputable firm’s members do not want to be associated with a cause that reflects badly on them and their families. (at the PTA “So your husband is with that firm fighting against Gays”, at lunch, at the country club, etc). I think a smaller point is the Gay employees, recruiting, etc.

If this took some Gay arm-twisting and shaming — hey, other groups do it!

The tide has turned in the mainstream. The lawyer who agreed to the skanky terms jumped over to the Bush Fascist Law Firm.

And MILLIONS of American got to hear that Boohoohooner was spending their money on fxg-hating shxt, not working on the economy.

[Bob Wood]

07:01 PM on 04/26/2011

If any homo sapien wishes to marry any other homo sapien...let them. ( For simplicity...I'd restrict it to the species ). This good law could be written on a 3 x 5 index card. It's a no-brainer. Millions benefit...no one is harmed...(sigh)

[balmora]

11:57 AM on 04/27/2011

Look up the definition of marriage in any dictionary you like, and you'll see that it is not a union between two people. It's a little more specific than that. What you and others are attempting to do is change the definition of words. Very Orwellian.

[truth be told again]

01:08 PM on 04/27/2011

Actually, it IS the union of two people. Only in the hate-States do they restrict the gender of those getting hitched. There's really no reason fo limit it to opposite pairs only. But it definitely is between TWO people, not more, and no non-humans. I'd like to know why the gender of the two people should interest the Government.

[MJinCanada]

01:24 PM on 04/27/2011

Other cultures have considered polygamy, polyandry, group marriages, incest, etc. to be marriages. The real issues in marriage throughout history have not been about "one man, one woman" but about money and property, keeping track of bloodlines (and thus inheritance), raising children, political connections and alliances, and (in the best situations) mutual support and companionship. The Habsburgs and other royal families got the popes to approve incestuous marriages to keep money and power in the family. Even back in ancient Israel, the laws of Moses decreed that if a woman was widowed before she had a son, one of her husband's brothers (either unmarried or with the means to support two wives) was required to marry her and father a son who would be considered the son of her late husband for the sake of inheritance and who could look after her in her old age. Various SF authors have predicted that group marriages or short term civil contracts may eventually be the norm because of the practicalities of raising children and juggling careers or to eliminate the fuss of divorce.

"Marriage" is not a narrow definition, nor set in stone.

[capercaper]

05:37 PM on 04/26/2011

Holder compared the criticism of Clement over his decision to defend DOMA to criticism of Justice Department lawyers who had defended Guantanamo Bay detainees in habeas cases while in private practice.

"The people who criticized our people here at the Justice Department were wrong then, as are people who criticized Paul Clement for taking the representation that is going to continue," Holder said, according to the National Law Journal's Mike Scarcella.

"I'm not casting blame," Holder said. "I think those who were critical of him for taking that representation -- that criticism is very misplaced."

http://tpmmuckraker.talkingpointsmemo.com/2011/04/holder_defends_clement_compares_attacks_over_doma.php

[LintLass]

09:34 PM on 04/26/2011

Accused *people* have a right to representation for criminal defense.

This doesn't mean unjust *laws* have to be defended over and over, never mind by a particular firm, just cause a political campaign wants to protract that injustice and discrimination.

Shallow to try to draw the comparison. Even in spirit. You're just flipping the narrative, here, Caper. DOMA is a *denial* of civil liberties, not somehow a defense of them.

[capercaper]

12:51 PM on 04/27/2011

It's Holder's comparison, not mine. I provided the link. You can check it out for yourself.

Here's another source on Holder's comments:

http://legaltimes.typepad.com/blt/2011/04/ag-holder-criticism-of-paul-clement-very-misplaced.html

I've also posted quotes and links from other "liberal" attorneys praising Clement.

[LintLass]

04:56 PM on 04/26/2011

There is no way in which it is sensible or responsible to spend blocks of public money to defend economic and legal disadvantage against Americans. These suppress the economy and violate our American principles.

Not to mention raise taxes on a lot of LGBT Americans and our families.

[truth be told again]

01:09 PM on 04/27/2011

+1

[LAguy]

04:25 PM on 04/26/2011

I agree with Clement's basic proposition that it is a lawyer's duty to take even unpopular cases. Think of Atticus Finch in To Kill a Mockingbird. However, as an attorney, I think that applies to the representation of unpopular individuals, who deserve their fair day in court no matter what the attorney's personal opinion might be. When it comes to broad matters of public policy I don't think the same idea applies. In those instances a lawyer can look at the issue, determine for himself whether it has merit or fits into his idea of the public good, and then accept or refuse the case accordingly. For our justice system to work offensive individuals deserve legal representation. Offensive laws and policies do not.

[EspritDeVoltaire]

03:37 PM on 04/26/2011

The next great law firm? They're not in the ballpark now and will take the case pro bono for the publicity?

[LynnW49]

02:54 PM on 04/26/2011

K & S can elect to not take a case and there is nothing unethical about it:
http://bit.ly/g2so0g
". . .it’s important to consider the nature of the litigation at hand. Lawsuits challenging DOMA are not the same as criminal cases, in which a client’s right to an effective defense is guaranteed by the Constitution. Criminal defendants who cannot afford lawyers are assigned one by the courts. That’s not the case in civil matters; despite advocacy from many in the legal community, the right to counsel is recognized only in criminal cases. No one could have been forced to take up the cause of the Republican leaders in the House of Representatives who want to defend this law, and King & Spaulding’s initial decision to do so was entirely elective."

And the contract with K & S placed absurd constraints on the law firm:
"The clause not only prohibits the firm from taking on any legal activity on the other side of the issue — which is standard — but prohibits the firm’s lawyers or other employees from engaging in “lobbying or advocacy for or against any legislation … that would alter or amend in any way the Defense of Marriage Act” that is pending before the House or Senate or any committee thereof.

Read literally, that means a janitor at the firm’s headquarters in Atlanta would be prohibited from writing a letter to his congressman opposing the act. . ."

[Bob Kellerman]

03:23 PM on 04/26/2011

In other words, the Boohooner crowd snuck in a clause that completely thumbs its nose at any Gay or Gay-sympathetic staff of the firm, telling them to shut up, even on personal time. This alone is a reason to force Clement out.

Fascism does not understand decency or limits