The Advocate’s Duties

Corporate legal work requires some balance of moralities: the professional, the personal, and the political. Ideally, they’ll all overlap; but that doesn’t happen often, and when conflict arises, we’re payed for, and draw our integrity from, the ability to put the professional first.

Though difficult at times, there’s a romantic quality to this: fundamentally, we exist to help people, and to give ourselves and our greatest efforts to another’s cause. Think of it as intellectual buccaneering, though not always so distasteful. Even the most questionable representation draws honor from its service to the larger goal, the proper functioning of a system where legal issues are resolved by the best and most thorough lawyering available. This is an important job, and defines big firm pro bono programs as much as true, feel-good cases. In my year and a half with my firm, I’ve seen both types of cases, argued one that’s most clearly justified on the former basis, and come to believe very strongly in the seminal importance of that work.

I say this, and explain it in some depth, to make clear how and why this passionate believer in gay rights comes to condemn a peer firm, King & Spalding LLP, for its decision to back out of its engagement to defend the Defense of Marriage Act on behalf of congressional Republicans. The withdrawal represents true moral cowardice, and a dereliction of the very serious duties a lawyer undertakes when agreeing to represent a client.

K&S mismanaged the matter from the start, by treating this as something different from a normal case. Among other things, the firm actually forbade all of its attorneys from discussing the case, or taking a political position contrary to the firm’s litigation position.  This is absurd, unheard of, and contrary to the ethos that typically binds lawyers. We trust counsel to separate themselves from the job, and in a normal firm (like mine) it’s not unheard of for the partner who argues a client’s case to the Supreme Court to hold and readily express different political viewpoints… within responsible professional limitations. To demand otherwise and abandon that trust assumes, as a background fact, that the firm’s engagement is less than total.

Clearly the representation had risks. K&S’ recruiting would have undoubtedly suffered, and probably still will. Because lawyers live lives of reason, we’re a notoriously and overwhelmingly pro-gay rights bunch. But that just begs the question of why K&S took the case in the first place.

Were I the firm’s managing partner, I would not have taken the case. But it’s a perilous road to start down when we question firms and individual lawyers on the cases they do take. K&S deserved leadership that would think through major business decisions before committing the firm’s name; and Boehner’s caucus deserved counsel that wouldn’t back out after the first hostile news cycle.

And, it bears mentioning, throughout all, Paul Clement has proved himself to be a real class act. His resignation letter, and especially paragraph three, deserves to be taught in law school Professional Responsibility classes nationwide.

Update: the “evil liberals scared away the superhero lawyers” meme doesn’t play. It may be classless to demonize a firm just because of the clients it chooses, but it’s worse to pretend the general public doesn’t have a right to do just that. Merchants may sell their product as they see fit, but it’s the hallmark of a capitalist society that they obligated to live with the consequences. Nor is it entirely fair to call this an extremist reaction against a mainstream position; that may’ve been the case ten years ago, but no longer. And I’ll add, K&S’ withdrawl is not exactly a good sign for the opponents of gay marriage. You can be sure they wouldn’t have pulled out unless they expected to lose substantial business and talent over the affair.


  1. (I don’t know what it says about me that this was my immediate thought, but…)

    “Intellectual buccaneering”, eh? So do you guys “sail the wide advoca-cy“, too?

    On a more serious note, I couldn’t agree more. If the right to counsel (and by extension the rule of law) is to mean anything, it obviously follows that lawyers should be able to argue any case whatsoever without stigma. That the public opinion often sees things differently is another matter, and unfortunate.

  2. I was hoping to see you comment on either this or yesterday’s other big legal news, the Brady v. NFL ruling. You didn’t disappoint.

  3. Yay!

    And I’m glad you both agree. I’ve actually been assigned to represent some pretty hideous clients… and I think you have to hold your nose and accept that you’re not the one making client decisions; they deserve representation regardless; and we — at least I — do this because the issues are interesting, not the clients angelic. Sigh.

  4. As a history student I don’t recall ever hearing the name of opposing counsel in learning about any of the ‘landmark’ cases that define American law. Can any non-lawyer name the guy that argued against Thurgood Marshall in Brown v. Education?

    My clumsy point is that in these circumstances history is not unkind to the losers – it simply forgets them. That anonymity should be a comfort for those who find themselves representing issues they don’t personally agree with.

  5. That’s fair. And where counsel isn’t a footsoldier, they’re rarely portrayed as such in the eventual HBO movie, or some such.

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