In a surprising move, former Bush Solicitor General Paul Clement has left King & Spalding after the firm announced that it would withdraw as counsel representing House Republicans in defending the Defense of Marriage Act.
While Clement and others are focusing on the politics behind the decision, more attention should be brought to the limiting conditions that the engagement contract placed on the firm's employees.
On Monday, K&S's chairman announced that the firm had filed a motion to withdraw as defenders of DOMA, citing an inadequate vetting process, reports The Atlantic.
The firm obviously performed a proper conflicts check, so it's only right to presume that its decision is motivated by politics--criticism from gay-rights organizations or threats from current clients.
Paul Clement's resignation letter confirms this suspicion, stating that he resigned "out of the firmly-held belief that a representation should not be abandoned because the client's legal position is extremely unpopular in certain quarters."
A defense of an attorney's obligation to represent even the most odious of causes is all well and good, but it fails to consider the uniqueness of this representation.
The contract with the House is said to have had a clause that bars all K&S employees from engaging in any lobbying or advocacy relating to DOMA--even if they have no contact with the actual representation.
Besides being offensive to the First Amendment, the clause requires employees to relinquish their constitutional rights regarding an important issue.
In the end, you have to question why Paul Clement gets to decide whether his representation is more important than the rights of every other K&S employee.
- Clement Quits King & Spalding Over Marriage Act Decision (Bloomberg)
- Defense of Marriage Act Dropped by Obama (FindLaw's Law & Daily Life)
- Opinion in Massachusetts' Defense of Marriage Act Lawsuit (FindLaw's Courtside)