King & Spalding Was Right to Withdraw
In the recent dustup over Paul Clement's resignation from King & Spalding, misplaced moralism has been in ample supply. Before his departure, Clement had committed the firm to represent the Republican leaders in the House of Representatives in litigation challenging the federal Defense of Marriage Act (DOMA). That act denies recognition to same-sex marriages even when sanctioned by state law, and the Obama administration recently determined it could not defend its constitutionality. In the wake of vehement protests by gay-rights groups, King & Spalding withdrew from representation on the ground that "the process used for vetting this engagement was inadequate." Clement, who had served as solicitor general under George W. Bush, issued a public letter of resignation. It expressed his "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."
Most bar leaders and legal ethics experts leapt to Clement's defense. Some applauded his courage, and invoked the well-worn example of John Adams risking his livelihood to defend British soldiers involved in the Boston Massacre. Other commentators, including Washington Post blogger Jennifer Rubin, condemned the firm for being willing to "fold like a cheap suitcase when their clients become unpopular." Volokh Conspiracy blogger Jonathan Adler joined a chorus lambasting the "McCarthyite" tactics of gay-rights activists in pressuring firm lawyers and clients. The New York Times' account quoted New York University School of Law professor Stephen Gillers' prediction that the firm's "timidity here will hurt weak clients, poor clients, and despised clients."