DOMA, Gitmo, and False Equivalences

by Kevin Jon Heller

At Lawfare today, Ben Wittes criticizes King & Spalding for refusing to help the House of Representatives defend the Defense of Marriage Act (DOMA) in court.  His argument turns on an analogy between representing the House and representing Gitmo detainees:

Sometimes, the politically unpopular client is the House of Representatives, not a Guantanamo detainee. Sometimes, the contested legal questions are not ones related to counterterrorism but involve marriage and equality and tradition. But good counsel is still critical to ensuring that tribunals have access to the best arguments and most rigorous factual presentations before making crucial decisions. When interest groups pressure law firms to drop such representations, they are still demanding adjudications stripped of a full record–or objecting to the right of their opponents to have adjudications at all. And if major law firms will buckle under such political pressures before defending a (rightly, in my view) disfavored federal statute, can anyone really imagine that they will not also abandon other disfavored clients?

Paul is a friend. I do not know his personal views on DOMA and would never ask them. But I ask readers to consider whether we would consider what King & Spalding did in this matter honorable had the firm done it to a different firm client–say, Mohammed Al Adahi–and how we would consider a lawyer who resigned in protest if it did.

I think Ben’s point that law firms should be very wary of letting interest groups pressure them into dropping clients is a good one, and in that regard the analogy to the horrific attacks on lawyers who represented Gitmo detainees is appropriate.  That said, I think Ben’s argument otherwise relies on a fundamentally false equivalence between Paul Clement and lawyers who represent Gitmo detainees.  Lawyers in the latter category are representing powerless, indigent clients who are faced with criminal charges or — worse still — a lifetime of indefinite detention.  Paul Clement is representing one part of the legislative branch of the United States government, a client that is not faced with the deprivation of liberty and is not even trying to defend a constitutional right.  The Constitution doesn’t define marriage as the union of a man and a woman, nor does it impose an obligation on the executive to defend laws (in contrast to enforcing them) that it believes are unconstitutional.

I have no problem with Clement choosing to represent the House in its attempt to defend the DOMA legislation, although I think Ted Olson deserves far more credit for using his legal skills to promote the constitutional rights of gays and lesbians.  But analogies like Ben’s simply reinforce one of the most destructive ideas perpetuated by legal education — namely, that a “good” lawyer is nothing more than a mercenary, willing and able to zealously promote the interests of whomever is capable of paying his or her fees.  Lawyers should always be free to represent whomever they want, but we should not pretend that there is no moral difference between civil-rights attorneys and attorneys who represent tobacco companies, weapons manufacturers, and polluters.  And we should certainly not pretend that there is no moral difference between representing individuals facing a lifetime in prison and representing right-wing congressmen facing a world in which they are no longer able to legislate hate.

ADDENDUM: Many critics of King & Spalding’s decision, including Ben, emphasize that the adversary system only works when both sides have quality representation.  That’s a lovely ideal, but in the real world quality representation is almost always the prerogative of the wealthy.  With the exception of indigent criminal defendants, who are provided overworked and under-resourced public defenders (whose funding is constantly under attack by conservatives), society has no problem either not providing the poor with any representation at all or providing them with substandard representation — tenants, the victims of mortgage fraud, employees discriminated against because of age or race or gender, people harmed by defective products, etc.  Such individuals have to rely on overworked and under-resourced legal-aid offices (whose funding is constantly under attack by conservatives) or plaintiff’s attorneys who work on contingency (whose work is constantly under attack by conservatives).  So please, spare me the crocodile tears for the poor House of Representatives.  When the government adequately funds public defenders’ offices and legal-aid societies, I’ll take the quality-representation argument seriously.

8 Responses

  1. Clement’s letter suggested that it wasn’t King & Spalding’s unwillingness to take the case in the first place, but its decision to drop the case once it had taken it, that was most objectionable to him. If the question is “what clients should you feel an obligation to take on,” I agree with your take. But if the question is “what clients should you feel free to drop,” I’m not sure I do.

  2. Ted,

    Although I think critics are focusing on the more general point, I completely agree with your comment.  K&S obviously handled the situation very poorly, and I have no problem with Clement’s decision to continue to represent the House.  Indeed, as you point out, it might have been unprofessional for him not to.  K&S thus deserves criticism for forcing Clement to choose between a client and his continued employment by the firm.

  3. Response… K&S very well might warrant criticism but his letter was a bit much — the special requirement the House included alone underlines taking this case required careful vetting and care.  It was not merely public opposition, as Clement said in the letter, that made it difficult for the firm.  I’m not sure if Clement himself did full due diligence here.

  4. Joe,

    I think the representation and lobbying ban undermines much of the criticism of K&S — normal conflict rules should have applied — but K&S still should have vetted the agreement more carefully.  I can’t imagine that the ban was slipped into the representation agreement at the last moment or buried in a footnote.  And after all, the firm has hundreds of lawyers…

  5. The bit that has me puzzled is why the resignation letter is in the public domain?

  6. Ian,

    I assume that’s the way Clement wanted it.

  7. I think this is an interesting variation on the cases that the lateThom Franck discussed in Resignation in Protest.  Here the person resigns from a private firm as part of maintaining a link to the House.  I suspect that if he angered the House folks he would not have much of a future in DC, while angering the law firm (there are many other quality lawfirms in town) would be less of a downside risk.

  8. Response… I agree Kevin that the firm is not free from blame here but special cases of this sort (Concurring Opinions raised the fact the fee is arguably is kinda small — I don’t know enough to say) would be likely be the ones where some slip-ups occur.  Suffice to say, they aren’t innocent but not very guilty.

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