Legal Ethics Forum

State of Virginia fires King & Spalding -- but I'm skeptical about it

There's been some discussion about the very public and pointed decision of the Attorney General of the State of Virginia to fire King & Spalding.  My intuition is that it's a politically driven move rather than authentically driven by insecurities the AG has about the firm.  But your mileage may vary.

Is This Confidential? Is This Privileged?

The President or General Counsel  of a company says to the managing partner of its outside law firm: "It is inconsistent with our values for our outside lawyers to be pushing the homosexual agenda in the courts."  The firm currently is representing a gay or lesbian person in an important case.

For those of you who believe there is a confidence and perhaps even a privilege, what do you believe the consequences will be for gays and lesbians who want to live in a part of the Country where lawyers are in short supply and where the better lawyers in town depend upon a closely knit -- often very conservative -- business community?  Should the business client be able to do this under the cloak of secrecy? 

In view of recent events and widespread prejudices towards gays and lesbians in places where they need legal representation most, this is not a mere hypothetical.  I also doubt big firms will want to put partners and associates on planes and buses to all of these places to represent people who can't find local lawyers.  We had better fix the law, if present law does not protect the legal system from this type of abuse (I believe it does to some extent, although I would also require the law firm to disclose the improper communication to the bar, which present law does not require).  John Adams understood the problem, but do we?

When Statutes’ Names Lie

I will not opine on the merits of state marriage laws.  Because, however, so much fuss has been made at the bench and bar over the Defense of Marriage Act (DOMA), it is incumbent upon those of us entering the fray to know what it says.  The name of the statute is a good starting point and indeed most citizens will not go beyond that.  The name suggests – indeed states – that the statute defends marriage.  That sounds like a good thing, although it sounds vague and some conservatives might wonder why that subject is any of the federal government’s business.

Now that we have read the label, let’s open the package and see what is inside (I have inserted the text below).  Congress says that the statute is “to define” marriage, but then decrees the “short title” that refers to something entirely different, which is the “defense” of marriage.  The next part of the statute says that no state shall be required to recognize a same-sex marriage from a different state.  This means that a same-sex marriage in one state is not valid in a second state unless the second state wants it to be.  This provision negates the validity of a marriage in the first state when the spouses move to the second state, which is the exact opposite of “defending” that marriage.  This provision also does nothing to defend opposite sex marriages in either state.   The last provision defines marriage for purposes of federal law.  The vast majority of state law marriages fall within this definition, but they did so before, so it is inconceivable that this provision does anything to defend those marriages.   A minority of state law marriages fall outside this definition, so the provision negates those marriages for purposes of federal law – the opposite of defending them.  I have read this statute over and over again (it does not take long) looking for some place where it defends marriages, and I find nothing but the opposite.

Lawyers drafted the statute, including the “short title” which misrepresents what it does.  Members of Congress, many of whom were lawyers, enacted it.   President Clinton, who is a lawyer, signed it even though he probably did not agree with it.   All of these lawyers knew that the short title of the statute said that the statute does something the statute does not do, and that in some respects is the opposite of what the statute does.

None of this means that the statute is unconstitutional (as the Court has pointed out several times, a stupid law is not necessarily an unconstitutional law).  None of this means that a lawyer should not agree to argue the case for its constitutionality, or that it is right for outside pressure groups to discourage a lawyer or law firm from doing so.  None of this excuses the conduct of a law firm that agrees to take the case and then drops the case under pressure, and none of this would excuse a law firm refusing to tell the discharged client who interfered with their representation and why (a few commentators – who are mostly anonymous -- continue to claim that one client under cloak of secrecy can interfere with a lawyer’s representation of another client in an unrelated matter without that client ever being told what is going on, but those supporting this view cite no relevant authority). 

What DOMA’s deceptive short title does mean is that this controversy, which has instigated so much unprofessionalism this week alone, started with a federal statute that entered a field traditionally reserved for the states and that then provided in its first section that the statute should be cited with a name that misrepresents what it does.   

And this is not the only instance.  In my field of securities law, I can think of the 1998 Securities Litigation Uniform Standards Act which had nothing to do with “uniform standards” unless that means simply preempting state securities law with federal law (Congress could have called it a “Preemption” statute but that would have conflicted with the professed states’ rights ideology of many of its Congressional sponsors).   Anyone who wants to add to the list of deceptively named federal statutes should do so in the comment section below.  Perhaps a Member of Congress will introduce a bill providing that these statutes be renamed to have short titles that disclose – or at least do not misrepresent – what they do.  Perhaps government lawyers will desist from the practice of drafting statutes with names that lie.

* * * *

    An Act To define and protect the institution of marriage.  Sept. 21, 1996 -  [H.R. 3396]

Be it enacted by the Senate and House of Representatives of the

United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Defense of Marriage Act''.

SEC. 2. POWERS RESERVED TO THE STATES.

    (a) In General.--Chapter 115 of title 28, United States Code, is

amended by adding after section 1738B the following:

``Sec. 1738C. Certain acts, records, and proceedings and the effect thereof

    ``No State, territory, or possession of the United States, or Indian

tribe, shall be required to give effect to any public act, record, or

judicial proceeding of any other State, territory, possession, or tribe

respecting a relationship between persons of the same sex that is

treated as a marriage under the laws of such other State, territory,

possession, or tribe, or a right or claim arising from such

relationship.''.

SEC. 3. DEFINITION OF MARRIAGE.

    (a) In General.--Chapter 1 of title 1, United States Code, is

amended by adding at the end the following:

``Sec. 7. Definition of `marriage' and `spouse'

    ``In determining the meaning of any Act of Congress, or of any

ruling, regulation, or interpretation of the various administrative

bureaus and agencies of the United States, the word `marriage' means

only a legal union between one man and one woman as husband and wife,

and the word `spouse' refers only to a person of the opposite sex who is

a husband or a wife.''.

The K&S DOMA Retainer

I have a copy of the K&S DOMA retainer.  It is dated two weeks ago, April 14, and signed by Clement on behalf of K&S.

The position-conflict restriction clause applies to employees in the firm who "engage in lobbying or advocacy with respect to legislation pending before the United States House of Representatives."   That does not appear to include janitors or mail room clerks who might write a letter to a member of Congress about DOMA.

Bruce Green on Ted Schneyer

Fordham's Bruce Green has written a fitting Foreword for a symposium edition of the Arizona Law Review that honors the highly influential work of Ted Schneyer.  (Ted is retiring.) The symposium itself was held in January.  Here is the abstract:

This is the Foreword to a festschrift on the theme of “Lawyer Regulation for the 21st Century” in honor of Ted Schneyer, the Milton O. Riepe Professor at University of Arizona, James E. Rogers College of Law. It discusses why Professor Schneyer’s legal ethics scholarship is so deserving of celebration and why the theme of this collection is so fitting. Among other things, it takes note of a dissenting opinion last Term in which Justice Scalia criticized the Court for implicitly approving views “articulated by an ad hoc group of legal-ethicist amici consisting mainly of professors of that least analytically rigorous and hence most subjective of law-school subjects, legal ethics.” In response, the Foreword maintains that Ted Schneyer’s scholarship belies the Justice’s characterization of the field of legal ethics, and concludes that Professor Schneyer’s writings deserve to be celebrated because, at this critical time in the legal profession’s history, they remind us of the importance of being rigorous.

 

The reactions to Fred Sainz and Cully Stimson

In the wake of the rather unfortunate "Cully Stimson episode," one of the encouraging developments was the number of public statements made by a variety of lawyers in condemnation of Stimson's comments.  In the wake of the HRC's campaign to pressure King & Spalding to drop its client (i.e., the House of Representatives), we're now seeing some public statements criticizing, expressly or implicitly, HRC's behavior.  Attorney General Eric Holder deserves credit, as do Jonathan Rausch, Steve Sanders, and many others.  (h/t: Volokh)  Still, it would be nice to see corporate in-house counsel and the ABA leadership speak out on the issue, as they did in response to the Cully Stimson episode.  Perhaps such statements are in the works.

In some of earlier discussions below, I had suggested that while both episodes were regrettable, it is worse when a government official speaks out that way regarding an incarcerated accused.  But, to be fair to Stimson, he publicly apologized for his comments.  The recent interviews of Fred Sainz, of the HRC, suggest that no apology will be forthcoming.

Is there something about same-sex marriage cases that brings out the worst?

There is something about same sex marriage that has lawyers not thinking straight (no pun intended).   We have seen two bad episodes this week:

First there was a pathetic motion to vacate Judge Walker’s order in the Proposition 8 case because he is gay and lives in a stable relationship with another man (as opposed to being celibate or a playboy).  One supporter of the motion summed up its message with the words “If the Judge Ain’t Straight: You Must Vacate”:

http://www.catholic.org/national/national_story.php?id=41065

This, however, is not the law (the web site is not an official site for the Church whose name it uses).    FRCP Rule 11 is the law, and was made for this kind of thing.

Second, King & Spalding first agreed to represent a committee of the United States House of Representatives in defending the Defense of Marriage Act (DOMA) against lawsuits claiming it is unconstitutional, and then King & Spalding suddenly dropped the client, under pressure from interest groups on the other side of the DOMA debate and perhaps pressure from another client.  Many commentators, including the Attorney General, have made clear their disapproval of these pressure tactics:   

http://www.politico.com/blogs/joshgerstein/0411/Eric_Holder_rejects_attacks_on_Paul_Clement_over_DOMA_defense.html

What is most embarrassing is that King & Spalding caved in to them.

In sum, it’s been a very bad week for lawyers on both sides of the same sex marriage debate (the good lawyers including Ted Olson and Paul Clement on the other hand are doing a superb job).   Professional responsibility professors drafting exams should think of spreading out the curve with a question about a same sex marriage case, with egregious conduct on both sides.  Unless the students are better than the real lawyers involved in these cases, at least half the class will get half the questions wrong.  

. . . and now for something completely different: the last typewriter plant shuts down.

Story here.  Commercial typewriters hit the market after the Civil War and they reached a standard configuration by 1910 or so. The impact on the practice of law was enormous (e.g., no longer did it make sense to have legal apprentices copy out documents by longhand, the amount of text that could be economically produced exploded, it facilitated the rise of the female secretary at the law firm, etc.)  I know that some scholar recently wrote a paper on the impact of the text's medium (stone, paper, bytes) on law itself but I cannot find it.  I'll finish with an anecdote. When I began working as a messenger and copy-boy at the family law firm in 1974, the secretaries typed out wills on 14 inch, single spaced pages, and no typos or cross-outs were permitted.  They would head off to a quiet room to type a will and you'd sometimes hear a scream of frustration as they hit a single wrong key somewhere near the bottom of the 14 inch page.

Is Pressure by One Client to Drop Another Ethical? Is it Confidential?

This scenario comes up from time to time in big law firms:

Firm begins to represent a controversial client, for example a civil rights group, sometimes for a low fee or pro bono.   A corporate client is upset and calls to complain.  There is no possible conflict between the clients under ethics rules, but the firm drops the controversial client anyway, in part to please the big corporate client.

Is it ethical to allow one client to interfere with the representation of another?  Is it ethical for in-house counsel to exert such pressure on an outside law firm?

Does the discontinued client have the right to know why it was dropped (Rule 1.4) or is this right to know trumped by the duty of confidentiality owed to the big client (Rule 1.6) even though the communication was not privileged and was arguably improper?

 

If Coca-Cola pressured K&S to withdraw, does that change anything?

Talking Points Memo has more background on King & Spalding's decision to drop the DOMA defense.  This part jumped out at me:

Sources with knowledge of the backlash confirm that one of King & Spalding's top clients, Coca Cola, also based in Atlanta, directly intervened to press the firm to extricate itself from the case.

Are there other recent examples where one major client pressured a firm to withdraw from representing a morally controversial client?  I do support lawyers making moral decisions about the cases they'll take -- or more accurately, acknowledging the moral dimension of those decisions, which is present whether or not they admit it -- and I suppose it's only natural that clients recognize a moral dimension to their choice of law firms.  But law firms need to be careful here in how they respond.  Coca-Cola's objective is to avoid offending anyone; a key professional trait of lawyers is their willingness to offend -- a trait that will be threatened if firms give in too easily to client demands on cases like this.  If Coca-Cola did play a role in the decision, it also may become a self-fulfilling prophecy: when a corporate client behaves as if they are morally responsible for the other clients their lawyers choose to represent, the public begins to believe it.  If the DOMA case is picked up by Kirkland & Ellis, GM employees and shareholders start to ask, "Hey, how come you're not making your law firm withdraw from this case like Coca-Cola did?"   So if Coca-Cola played a role, does that change our analysis of the decision to withdraw?

UPDATE: I missed Brad Wendel's comment from earlier today in the thread below:

Coke probably doesn't want K&S representing Pepsi either, even in cases that don't technically create a conflict of interest under Rule 1.7. Powerful clients are free to bargain for rights not granted in the disciplinary rules. But is Coke abusing its power here? There is a long history of powerful clients pressuring their firms not to represent clients advocating for progressive causes. I'm sure there are plenty of law firms in the South who were told in no uncertain terms that their services should not be used in school desegregation cases. If that was wrong, is it wrong for clients on the "right" side of history to pressure law firms not to stand in the way of progress? I think I'm going to have to say yes, which is consistent with my general view that these are questions about which people disagree in good faith, and thus lawyers have a role in working out an orderly democratic solution.