News Analysis: What Actually Happened With King & Spalding?
The Human Rights Campaign has pushed the story that its public protestations and threatened in-person protests led to the decision by Atlanta-based King & Spalding to seek to withdraw as counsel for the House Bipartisan Legal Advisory Group in its defense of Section 3 of the Defense of Marriage Act.
Then, in a report relying heavily on HRC’s account, Talking Points Memo’s Brian Beutler also reported — with no on-the-record confirmation — that Atlanta-based Coca-Cola complained directly to King & Spalding about the contract. The extent or specifics of any rumored intervention by Coca-Cola are unknown, and TPM, besides the stray mention, provides no further elucidation of the intervention.
Other groups, like Get Equal, also pushed back, urging members to call the firm in a “Dial-in to Defeat DOMA” event to urge King & Spalding to drop its defense of the 1996 law. Blogs were afire with criticism of King and Spalding’s defense, and Minority Leader Rep. Nancy Pelosi (D-Calif.) raised questions about the specifics of the firm’s retention.
All of this does suggest that much of public opinion was harshly pointed against King & Spalding’s representation in defense of DOMA.
It does not, however, mean political or policy preferences or fears of protests are why King & Spalding stopped the BLAG representation. And, although good for HRC’s reputation among its base, this emerging narrative paints King & Spalding — a major law firm — in a rather unflattering or even unprofessional light.
More problematic than those perceptions, though, is that this narrative discounts or even ignores what actually has been written and said by King & Spalding about the decision.
King & Spalding chairman Robert D. Hays Jr., said in a statement of the decision to drop its representation of the BLAG, “In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate.”
Then, as reported on April 25 at Metro Weekly, there was the actual motion to withdraw that was filed by the chairman of the firm’s ethics committee, Richard A. Cirillo. Cirillo filed — in a sworn declaration to the U.S. District Court to the Southern District of New York — a statement that, under the New York Rules of Professional Conduct, he believed that the court should allow King & Spalding to withdraw because “the lawyer believes in good faith, in a matter pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.”
As reported at Metro Weekly:
Cirillo did not specify what “good cause” King & Spalding had determined the court would find for its withdrawal.
Jon Davidson, legal director of Lambda Legal, had, however, spoken with Metro Weekly on April 20 about the contract King & Spalding had signed with House General Counsel Kerry Kircher. Davidson raised questions about the legality of one provision in the contract that would prohibit King & Spalding’s employees – lawyers and non-lawyers – from advocating for the Respect for Marriage Act – the bill that would repeal the Defense of Marriage Act – in the 112th Congress.
Davidson specifically pointed to California, where King & Spalding has two offices, in which Labor Code Section 1101 states that “[n]o employer shall make, adopt, or enforce any rule, regulation, or policy … [f]orbidding or preventing employees from engaging or participating in politics ….”
Good cause, in legal terminology, means that there is a legally adequate or other substantial grounds for whatever action is being considered.
If King & Spalding told a court that it determined that “good cause” exists for it to withdraw, one of two things are true: (1) the firm’s ethics committee chairman, Cirillo, told the court the truth and the firm believes there is a legally adequate reason for withdrawal or (2) the firm doesn’t believe their own filing and, as Jennifer Rubin wrote at The Washington Post, they “fold[ed] like a cheap suitcase when their clients become unpopular.”
And the latter scenario is what Rubin’s column — and HRC’s narrative — suggests. It also is the motivating principle behind the good will being heaped upon now-resigned attorney Paul Clement, who moved to a new firm in D.C. so that he could continue to represent the BLAG. None less than former Clinton administration solicitor general Seth Waxman is praising Clement’s move [as is Attorney General Eric Holder, per Politico‘s Josh Gerstein] — not to mention all of those organizations on the far right who enjoy nothing more than portraying themselves as victims of progressive ideologies.
[UPDATE @ 9:15 PM: There is a third possibility: King & Spalding believes there is a valid reason to withdraw but that political pressure and considerations actually led the firm to withdraw. This, like a purely political decision, would create criticism for King & Spalding, but it also is the scenario least likely to be proven (or disproven) in the absense of some definitive email or other recorded proof.]
In high-profile cases involving a hot-button political dispute like same-sex marriage, it’s obvious that political entities are going to be advancing political narratives.
It is, however, precisely at those times when facts matter most.
Here, the facts remain that Clement signed the initial contract on behalf of King & Spalding, questions were raised about the content of that contract, the ethics committee chairman moved to withdraw the firm from representation and Clement left the firm.
[UPDATE @ 9:15 PM: After discussions with several people about this post, I would like to note explicitly what is implicit throughout: What happened is not publicly known. The primary purpose of this analysis, then, is to provide a sort of Occam’s razor explanation based on the two most trustworthy documents available: the signed contract between Kircher and Clement and the declaration filed by Cirillo.]
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