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Continued fallout for King & Spaulding

DOMA trials

By Adam Bink

With thanks to Sagesse for noting the news, I see the fallout for King & Spaulding continues:

Virginia Attorney General Ken Cuccinelli (R) is terminating his office’s relationship with law firm King & Spalding after the firm decided to drop its defense of the controversial Defense of Marriage Act (DOMA) last week.

“King & Spalding’s willingness to drop a client, the U.S. House of Representatives, in connection with the lawsuit challenging the Defense of Marriage Act (DOMA) was such an obsequious act of weakness that I feel compelled to end your legal association with Virginia so that there is no chance that one of my legal clients will be put in the embarrassing and difficult situation like the client you walked away from, the House of Representatives,” Cuccinelli wrote to firm partner Joseph Lynch in a letter obtained by the Washington Examiner.

[…]

According to the letter, Cuccinelli said: “Virginia does not shy away from hiring outside counsel because they may have ongoing professional relationships with people or entities, or on behalf of causes that I, or my office, or Virginia as a whole may not support. But it is crucial for us to be able to trust and rely on the fact that our outside counsel will not desert Virginia due to pressure by an outside group or groups.”

“Virginia seeks firms of committment, [sic] courage, strength and toughness, and unfortunately, what the world has learned of King & Spalding, is that your firm utterly lacks such qualities,” he added, according to the Washington Examiner. He also said that the firm would not be able to reapply for special counsel status for the state of Virginia as long as he was attorney general.

Given the reporting about how Coca-Cola and other firms had complained privately to K&S about taking on the case and the pressure they were receiving, I suspect the heat on the other side of the coin would have been worse if K&S kept the case. Bottom line, though, is that they played with fire and got burned. Kerry Eleveld, formerly of The Advocate, writes:

Exactly why the firm dropped the case is still a bit of a mystery, but LGBT advocacy organizations came out of the box swinging just as soon as the contract went public. The president of Equality Matters, Richard Socarides, appeared on MSNBC’s Hardball saying, “[T]his very prominent national law firm has taken on the defense of this horrific law, and we think it’s deplorable.” And the Human Rights Campaign reportedly contacted large clients of King & Spalding as well as LGBT student groups at top law firms to notify them of the firm’s plan to defend the statute.

Call it a gut feeling, but I have a feeling K&S may have had more to lose on the client side staying with the case than it would have gained from hard-right folks like Cuccinelli signing up with the firm.

57 Comments

  • 1. Rhie  |  April 30, 2011 at 8:43 am

    Scribin

  • 2. Mark  |  April 30, 2011 at 8:48 am

    And of course we will hear more about clients complaining that they dropped the case than the penalties they would have suffered if they had stayed on.

  • 3. Ann S.  |  April 30, 2011 at 8:55 am

    I think we're giving advocacy a wee bit too much credit here. They couldn't comply both with their contract gag provision and with California law. Hence, they "didn't vet it adequately". Solution: Clement went to a firm without a California office.

  • 4. Ann S.  |  April 30, 2011 at 8:55 am

    §

  • 5. Ronnie  |  April 30, 2011 at 9:01 am

    I love the sound of tiny violins…I'll think I'll have some cheese because that w(h)ine is so bitter that it is ruining their tiny yet soothing sounds….. (rolls eyes at Cuccinelli).

    8 / …..Ronnie

  • 6. Sagesse  |  April 30, 2011 at 9:07 am

    I don't understand this comment in Kerry Eleveld's article.

    ",,,DOMA, which is notably a law and not a person, does not have a right to representation."

    Surely the 'client' that is being represented is not DOMA, the law, but the Republican-dominated House of Representatives that enacts laws? Doesn't eliminate the question of whether a law firm agrees to represent the client or not, but in the circumstances, the House is entitled to defend the law (any law), and is entitled to engage legal counsel to do it.

  • 7. Rhonda  |  April 30, 2011 at 9:18 am

    Doma is the "right" (to discriminate) being protected.

  • 8. Rhie  |  April 30, 2011 at 9:30 am

    In a crime, a person is accused of not following a law. That makes them the client and the Constitution gives the right of a defense. In this case, a law is being accused and the Republicans have decided that they need to defended. No law firm is required to go along with that.

  • 9. Rhie  |  April 30, 2011 at 9:31 am

    …required to defend it. Not defended.

  • 10. Kathleen  |  April 30, 2011 at 9:51 am

    That's my feeling about this also, Ann. I think the non-advocacy clause created a problem for them, either legally (as in Cali) or it conflicted with the current activities of some people in the firm. I think that's what didn't get vetted adequately. Whatever pressure was exerted from advocacy groups or some of their other clients just made the nudge that much stronger. Of course, we may never know the real story.

  • 11. eddie  |  April 30, 2011 at 9:58 am

    This isn't surprising from an idiot and bigot like Cuccinelli. He'd probably hang LGBTs given half a chance. He's one of the worst things to happen to Virginia in a while.

  • 12. Sagesse  |  April 30, 2011 at 10:01 am

    The non-advocacy clause (for the duration of the representation, which could be years) can work in a firm like Bancroft, with seven people. It's just not practical in a firm with 800 lawyers in 16 cities.

  • 13. Sagesse  |  April 30, 2011 at 10:12 am

    A Tipping Point for Gay Marriage?
    http://www.nytimes.com/2011/05/01/weekinreview/01

  • 14. Greg  |  April 30, 2011 at 10:15 am

    Nobody is suing the House of Representatives, therefore the House is not a defendant in this case and is therefore not "entitled" to legal representation (never mind the fact that the House employs an extensive legal staff of its own).

  • 15. Sagesse  |  April 30, 2011 at 10:36 am

    Agreed there is no right to representation such as an individual has. Just pointing out that there is a neutral principle – the legislative branch of the government has the right to defend duly enacted laws, any duly enacted law. No firm is required to take the case, but one that does is working for one of the three branches of government.

    It may seem like a subtle point, but DOMA is not 'entitled' to a defence… it does not follow that the House is not entitled to engage counsel in doing its job.

  • 16. Rhie  |  April 30, 2011 at 10:45 am

    I think there is some question as to whether that counsel has to be an expensive private firm. The government has counsel on their books for just this occasion.

    My personal opinion is that if they can't find a lawyer who actually works for the House to defend the law they shouldn't be allowed to waste money chasing expensive private firms. Especially now. Honestly, I very much enjoy seeing them rightfully crucified in the media for that.

  • 17. Josh  |  April 30, 2011 at 10:50 am

    Unfortunately he didn't just "happen" to Virginia. Virginians elected him, knowing full well his extreme stance on social issues. Says a lot about the good people of my former home and state of my birth. I won't be moving back there anytime soon.

  • 18. Tony  |  April 30, 2011 at 10:52 am

    Doesn't a lawyer have an ethical duty to tell a client: "You have no case – I could take your money and go to the court each day, I can even use a lot of Latin words, and cite a lot of other case as precedent. But we will lose – because you have no case"?

  • 19. Steve  |  April 30, 2011 at 10:55 am

    I've heard some argue that they couldn't use DoJ lawyers because those belong to the executive branch, whereas the defense is carried out by the legislature. Is that true?

    In any case, I'd assume that Congress has some lawyers on staff as well.

  • 20. Kathleen  |  April 30, 2011 at 11:12 am

    Yes, the DOJ is part of the Executive Branch and was part of the Obama decision to no longer defend the law in court. The House has its own attorneys, but apparently they haven't the resources to mount this defense.

  • 21. Rhie  |  April 30, 2011 at 11:14 am

    Wait, the House doesn't have the resources to pay it's own lawyers but does have the resources to pay a firm that will almost certainly be much more expensive? Yea, no.

    At the very least, wouldn't SOMEone in the House be owed a favor by some lawyer, somewhere?

  • 22. Sagesse  |  April 30, 2011 at 11:32 am

    Apparently safe until next year

    'Don't Say Gay' Bill Too Late For Passage This Year; Senate Vote Expected Thursday
    http://www.ontopmag.com/article.aspx?id=8240&…

  • 23. Sagesse  |  April 30, 2011 at 11:35 am

    FRC's Tony Perkins Likens Gay Men, Lesbians To Terrorists
    http://ontopmag.com/article.aspx?id=8235&Medi

  • 24. Sagesse  |  April 30, 2011 at 11:39 am

    Five Arrested for Gay Teen Assault
    http://www.advocate.com/News/Daily_News/2011/04/3

  • 25. Sagesse  |  April 30, 2011 at 11:44 am

    R.I. Civil Unions Bill to Be Introduced Tuesday
    http://www.advocate.com/News/Daily_News/2011/04/2

  • 26. Sagesse  |  April 30, 2011 at 11:46 am

    Labor Dept Bars Gender Identity Discrimination
    http://www.advocate.com/News/Daily_News/2011/04/2

  • 27. Sagesse  |  April 30, 2011 at 11:59 am

    Kagan defends former Bush official who is representing House in same-sex marriage case
    http://www.washingtonpost.com/politics/kagan-defe

  • 28. Kathleen  |  April 30, 2011 at 12:00 pm

    I think the staff is just too small – not enough attorneys to handle all the litigation.

  • 29. Sagesse  |  April 30, 2011 at 12:03 pm

    ACLU honors ousted justices
    http://www.press-citizen.com/article/20110430/OPI

  • 30. Carol  |  April 30, 2011 at 1:47 pm

    It's laughable when you think how many members of the House are lawyers, and how much of their staff are also lawyers.

  • 31. Ann S.  |  April 30, 2011 at 3:22 pm

    It's probably a minority of lawyers with the ability to handle this kind of federal appellate litigation. Members of the House can't take on litigation — they have their hands full already.

  • 32. Ron  |  April 30, 2011 at 3:44 pm

    Cuccinelli is a hideous backwater redneck bigot

  • 33. AB  |  April 30, 2011 at 3:59 pm

    Great… now I am uncomfortable with Kagan hearing the case when it comes to the SCOTUS.

  • 34. Sagesse  |  April 30, 2011 at 10:44 pm

    'Glee' Defended By GLAAD President Jarrett Barrios
    http://www.huffingtonpost.com/2011/05/01/glee-def

  • 35. Sagesse  |  April 30, 2011 at 11:08 pm

    Rhode Island Catholic Diocese Fights Against Civil Unions
    http://www.huffingtonpost.com/2011/05/01/rhode-is

    I have not heard this raised, but isn't this a new tack for the Catholic Church… opposing not just marriage equality, but civil unions as well?

  • 36. Sagesse  |  April 30, 2011 at 11:19 pm

    The Providence Journal has a poll, with over 800 responses and some interesting comments. ( Requires free registration, and it's a clunky process.)
    <a href="http://www.projo.com/perl/common/surveys/display_full.pl?poll_id=26128&site=projo&vaction=voting&thissite =www.projo.com” target=”_blank”>http://www.projo.com/perl/common/surveys/display_…” target=”_blank”>=www.projo.com

  • 37. Josh  |  May 1, 2011 at 12:35 am

    "Maggie Gallagher, the president of the Institute for Marriage and Public Policy"

    So she's in nom and this crack-pot group? Sounds a reputable as narth, haha. What joke clown.

  • 38. Kathleen  |  May 1, 2011 at 1:25 am

    I also don't recall the Catholic Church opposing civil unions before. NOM has, but I don't recall the Church taking this position before.

  • 39. Sagesse  |  May 1, 2011 at 1:41 am

    She founded this 'organization' in the days before NOM, when she was a columnist. If I recall, she styles it as some sort of marriage 'think tank'. Sort of like Blankenhorn's 'organization'.

  • 40. Kathleen  |  May 1, 2011 at 1:53 am

    I thought I remembered reading that she founded the organization, but am having trouble finding reference to it. I did find this old bio that seems to be from around the time the org was started. http://www.uexpress.com/maggiegallagher/bio.html

    Am I the only one who didn't know she used to be an editor at National Review? I know she's a contributor for their online content, but an editor of the mag?

  • 41. Bob  |  May 1, 2011 at 2:02 am

    The Catholic Church has the absolute freedom to believe what it wants without gov't interference

    unless they act out those beliefs in a way that attempts to impose those beliefs on the public,,,, then the gov't has a right to restrict those actions,,,, wonder if they've crossed that line,,,,

  • 42. Sagesse  |  May 1, 2011 at 2:22 am

    Didn't know she was an editor, but I knew she made her living writing columns and books and 'working' in the marriage business (who knew there was such a thing). She also did research for government.

    Courtesy of Wikpedia, the source of all knowledge.

    "Gallagher received tens of thousands of dollars from the Department of Health and Human Services during 2002 and 2003 for helping the George W. Bush administration promote the President's Healthy Marriage Initiative. During this time, Gallagher testified before Congress in favor of "healthy marriage" programs, but never disclosed the payments."

  • 43. Kathleen  |  May 1, 2011 at 2:38 am

    I remember that scandal when it hit the press.

  • 44. eddie  |  May 1, 2011 at 4:36 am

    True. But *I* didn't vote for him. Virginia should be split into two states: Northern Virginia and Hickville.

    "Virginia is for Lovers." ….straight lovers only.

  • 45. Rhie  |  May 1, 2011 at 7:01 am

    Actually, under the laws that govern religious organizations, they should have lost their tax exempt status a long time ago. They are required under law to not push political or social issues in their capacity as a church.

    I am not really surprised that they are going after civil unions. It's been clear for years that they are opposed to any rights at all for LGBT. I think it is a good sign that they are making that public now. The Right is getting desperate, and that means they are losing. Badly.

  • 46. Kathleen  |  May 1, 2011 at 7:03 am

    They're allowed to do some politicking on issues; the absolute prohibition is on supporting or opposing candidates.

  • 47. Rhie  |  May 1, 2011 at 7:20 am

    Ah Ok. Thanks :)

  • 48. Elizabeth Oakes  |  May 1, 2011 at 7:21 am

    I think the church condemning civil unions is about quashing the possibility of compelling arguments like the one in California re: Prop8 challenge–that is, if a state creates a separate status for gays that is similar but not equal to marriage, it's clearly discriminatory. It's a cynical effort to derail future legal challenges to the anti-marriage laws they're sponsoring, if you ask me. There's a cynical political motive behind this campaign; otherwise they'd be content with all of us sinners just going to hell no matter what the laws were, right?

  • 49. Bob  |  May 1, 2011 at 7:27 am

    right Kathleen, though I think they are pushing the boundaries, ,,,,, and I don't know if those boundaries are as clearly defined as they could be,,, would love to see them challenged on it,,, the statement itself clearly suggests the Church favours the candidate who is anti-equality,,,,

    the thing I like about it is that The Catholic Church by speaking out like this places itself in the position of opponent to equality,,,,,,, which we have always known,,, but hopefully someone can call them out further on this,,,,

    maybe they're safe because they speak out in their own publications,,,, but they are going after civil unions,,, which they have no authority over,,,,,

    Louis needs to make another appeal for understanding the difference between Holy Matrimony / civil unions,,,,,

  • 50. Sagesse  |  May 1, 2011 at 8:20 am

    The offensive part of how they get around it is they get their congregation all in a room once a week and tell them what Darwin… er G_d thinks about the issues, and then sends them out to exercise their individual freedom of speech and their franchise. Not only do they launder money, they launder opinions too. They use the NOM catchphrases, which are then reinforced by the campaign ads that 'NOM' pays for.

    The also speak on social issues as though they represent the views of their entire congregation, and the politicians act as though it's true, even though we all know that many individual Catholics, for example, have opinions that vary from doctrine.

  • 51. Greg  |  May 1, 2011 at 9:42 am

    Virginia was already split into two states once already and it didn't seem to help much.

  • 52. Ann S.  |  May 1, 2011 at 9:46 am

    I'm not. There really is a high value put on not dropping a client in the middle of a case within the legal community. It is often legal and technically within the ethical rules to withdraw from representation, but it generally is sort of frowned upon.

    Boehner was going to hire somebody. It happened to be Clement. It's not something I would ever do (partly because I am a million miles from being qualified to take on these cases, partly because I wouldn't want to work for Boehner, partly because I wouldn't care to be associated with the cause) but someone was going to do it.

    I don't see Kagan's comments as any indication of how she would rule. If anything, having made favorable comments about Clement, now she's got to bend over backwards to show that she's impartial.

  • 53. Lee  |  May 1, 2011 at 1:50 pm

    Well I didn't think about their actions being from anything other than a change of heart. I wrote to K&S and told them how I felt about them defending DOMA, and I wrote again to thank them when they dropped the case. I'll still stand by what I said to them, regardless of their reasons.

  • 54. Bob  |  May 1, 2011 at 2:07 pm

    Osama Bin Laden, is dead,, by the order of President Obama

  • 55. Jon  |  May 2, 2011 at 2:56 am

    K&S made a business decision.

    Law and ethics had nothing to do with it.

    Fallout? They've already estimated it as less than the cost of staying on the case.

  • 56. NRA terminates agreement &hellip  |  May 2, 2011 at 1:17 pm

    […] on the Virginia Attorney General deciding to do the same, NRA General Counsel David Lehman wrote to King & Spalding, deciding to drop their legal […]

  • 57. Ķĭŗîļĺę&  |  May 5, 2011 at 8:52 am

    Oh, same Ken Cuccinelli who tweeted yesterday that he would give a lot to be one of the 72 virgins that Osama bin Laden is supposed to meet in his afterlife.

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