[Oops. I can see that as I prepared this entry, Steve Gillers was posting his own, just below. Steve's earlier post was here. Plus, I edited the title from "Spaulding" to "Spalding." Legal ethicists might guess why I added the erroneous "u."]
King & Spalding has dropped its defense of the DOMA statute. When news broke that the firm had taken on the matter and had agreed to unusual restrictions on its lawyers, the blawgosphere had a lot of commentary.
It's hard to pin down exactly why the firm dropped the matter. [See UPDATE 4 below] Was it public embarrassment over the politics of the legal position? Big firms can be quite sensitive to those issues. One can imagine the negative impact on K&S as they interviewed this coming Fall at elite law schools. Was it the unusually broad definition of conflicts of interest the client induced the firm to adopt? Perhaps, or even probably, given that the firm is saying that it had inadequately vetted the new matter. (In my experience it's not unusual for a client's "terms and conditions" to fly under the radar at the firm, for a variety of understandable reasons. That would make sense of the "inadequately vetted" notion.)
In any case, there was no call to boycott King & Spalding that I was aware of. [See UPDATE 2 below!] The condemnation seemed directed at the provision that might have keep K&S lawyers from speaking publicly on same sex marriage issues -- a provision worth criticism, imo. And it appears that Paul Clement, the K&S partner working on the matter, will leave the firm and keep working on the briefing, so the client is not deprived of its client of choice.
UPDATE: Paul Clement's letter to the firm has been published on the net (h/t: Volokh) and it implies that the matter was dropped not because of the conflicts restrictions but rather because the legal position was considered "extremely unpopular in some quarters." Sad if true. But I keep reminding myself that we really don't know how and why the decision was made, and if it was made on the basis of the conflicts provisions, there was some merit to it. (Suppose that was the basis. Wouldn't the firm seek clarification or relief from the client in the normal case? And wouldn't many clients say, "of course we didn't suggest that your lawyers couldn't speak out on the public issue"? I have no idea if that's what happened here.)
UPDATE 2: Jonathan Adler's comment below and an email brought to my attention that boycotts had been called for and/or discussed against King & Spaulding. The pressure in the firm from the recruiting side might well have been intense. Assuming that's all true, is this another "Cully Stimson" moment? Or would we distinguish it somehow? One grounds to distinguish the two matters is to say that defense of an incarcerated accused belongs in a special category, in that it's the representation of the "friendless and oppressed."
UPDATE 3: There's been quite a bit of focus on the restrictions the client placed on the firm. While I certainly found them overbroad, I wonder about how they were drafted. In my experience, the government's conflicts rules can be unusually broad and divorced from reality. So that language might track some regulation or some policy as it relates to vendors to Congress. Or it might track what some slightly over-cautious bureaucrat once drafted and it's now become boilerplate. Once again, I'm just speculating. But it's worth noting that the animus behind the restriction may not have been wicked or mean-spirited so much as it was the ordinary banality of a bureaucrat.
UPDATE 4: As more evidence has emerged, it's become more likely that the firm terminated the representation due to fear of a boycott at law schools and pressure from certain clients -- and that the restrictions the client placed upon the firm were a convenient explanation. Indeed, HRC publicly confirms that it was putting pressure on the firm's client and on its recruitment from elite law schools. I'd like to see a more robust commitment to the right to counsel -- by HRC and by K&S. Realistically, though, big law firms are all about the money and to the extent they are vulnerable on issues like this, they tend to view the center-left as the safe ground. The good news is that competent lawyers will be representing the client, notwithstanding the firm's capitulation.