April 26, 2011
Should clients ensure that their lawyers only represent unobjectionable clients?
Talking Points Memo has more background on King & Spalding's decision to drop the DOMA defense. This part jumped out at me:
Sources with knowledge of the backlash confirm that one of King & Spalding's top clients, Coca Cola, also based in Atlanta, directly intervened to press the firm to extricate itself from the case.
Maybe I'm wrong, but it doesn't seem to me that clients have traditionally chosen their lawyers based on the moral standing of the lawyers' other clients. I do support lawyers making moral decisions about the cases they'll take -- or more accurately, acknowledging the moral dimension of those decisions, which is present whether or not they admit it -- and I suppose it's only natural that the moral accountability extends to other clients, but law firms need to be careful here. Coca-Cola's objective is to avoid offending anyone; if lawyers adopt this by giving in too easily to client demands, they will have abandoned a key quality of the lawyer's traditional role: the willingness to offend.
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Lawrence Cunningham argues convincingly that the decision actually had nothing to do with the moral standing of the case or the clients. http://www.concurringopinions.com/archives/2011/04/invective-left-and-right-in-kingspalding-doma-affair.html
I haven't seen any actual evidence - beyond supposition - to support a claim that K&S actually based their decision on the immorality of defending an unconstitutional, discriminatory law, rather than the concerns that Cunningham lays out. The mere fact that they were facing external pressure doesn't prove that their decision was because of that pressure.
Posted by: Andrew MacKie-Mason | Apr 26, 2011 1:42:01 PM
With all due respect, where exactly does The Constitution state that all sexual acts and sexual relationships are equal and thus we must not discriminate between appropriate and inappropriate sexual acts and sexual relationships?
Posted by: Nancy D. | Apr 26, 2011 3:49:33 PM
Denying the self-evident truth regarding the inherent dignity of the human person found within our complementary nature as male and female, offends all persons, for we are husbands and wives, fathers and mothers, sons and daughters, brothers and sisters...
Posted by: Nancy D. | Apr 26, 2011 4:02:49 PM
Would this not mean the end of legal reprsentation? Surely there is always someone. including other clients, who will object. If I recall correctly, John Adams's law practice took a major hit when he chose to become involved with the British soldiers involved with the Boston Massacre. The objection may not be or may be meritorious, but that is not what is at stake. What is at stake is that someone will object regardless of the basis or the merits of the objection. The objection stands by itself, detached from substance. During my years at the UN, there were NGOs and developing countries who objected to large corporations and how they conducted their businesses. Interestingly, Coca Cola was one of the these corporations. If we follow this rationale, lawyers would be put out of practice by the heckler's veto. And, Coca Cola might find itself in the predicament which it may have created for others. Maybe things don't go better with Coke in spite of what the advertising asserts.
Posted by: Robert John Araujo, S.J. | Apr 26, 2011 5:43:18 PM
Nor should Coke a Cola, a company that now claims we should celebrate the equality and diversity of all sexual acts and sexual relationships be considered "the real thing".
Posted by: Nancy D. | Apr 26, 2011 6:56:55 PM
So it is now okay to pressure lawyers to not take a case or defend certain clients? Only some now have the right to an attorney? Homosexual groups have the right to destroy any opposition to their demands?
Posted by: Fr. J | Apr 26, 2011 7:39:24 PM
Well, Nancy D, DOMA has absolutely nothing to do with sexual acts or sexual relationships, so I'm not sure how anything you're saying is relevant.
Fr. J: I think it's a bit much to suggest that the right to an attorney is the same thing as the right to a specific attorney. I'm honestly not sure where I stand, but I don't think it's as clear cut as you suggest: since we live in a time when equal legal representation is a myth and groups can secure better representation if they have more money, I'm not sure it's bad to try to bring them down a notch by orchestrating backlash against those high-priced attorneys.
A community ostracizing a local lawyer because he's the only one willing to represent an unpopular client is obviously a problem. Ostracizing a huge, rich firm because they choose to represent an unpopular client...that's less clear.
Of course, as I said, I haven't seen any compelling evidence for the alleged reasons for K&S's withdrawal.
Posted by: Andrew MacKie-Mason | Apr 26, 2011 9:38:10 PM
Andrew, it is also a self-evident truth that only someone who desires to replace the real thing with a counterfeit, would object to these words, "I'd like to teach, the world to sing, in perfect harmony, it's the real thing, D-O-M-A." I'm hoping the Coca-Cola company has the courage to support the real thing.
Posted by: Nancy D. | Apr 27, 2011 8:37:27 AM
Who, if anyone, can be accused of doing something wrong in this affair?
• Was it wrong for the gay organizations to contact the clients and urge them to pressure the law firm?
• Was it wrong for the clients to contact the law firm and apply pressure?
• Was it wrong for the law firm to cave in to the pressure (if this is indeed what happened)?
I found this sentence in the article Rob Vischer linked to interesting: "Other high-powered law firms in New York and Washington, D.C., wanted nothing to do with the case from the outset."
This raises other questions in my mind.
• Was it wrong for other law firms to steer clear of this case for, presumably, the same reasons King & Spalding backed out?
• If it was not wrong for others to steer clear of the case, it seems to me that King & Spalding can't be accused of having bad motives. It was motivated by the same considerations that other law firms were who avoided the case altogether.
Of course, Rob Vischer's original question is limited to what clients do.
Nancy D. condemns Coca-Cola for pressuring its law firm to drop the case, but one suspects she would praise Coca-Cola if it had pressured its law firm to take the case in the first place. So she is not actually commenting on what clients should and should not do. She is saying it is good for clients to pressure law firms when she agrees with the client and bad for clients to pressure law firms when she disagrees with the client.
Fr. Araujo asks: "Would this not mean the end of legal representation?" One answer is, "No, not if firms don't capitulate to pressure from clients." But I think the same question could be asked if it is indeed true that no other firms would get near this case. If firms decline to take unpopular cases in the first place, anticipating pressure from clients, it is in some ways worse than firms taking the case and then giving in to pressure from clients. If firms impose restrictions on themselves out of fear of offending existing clients, they may restrict their own behavior to a greater extent than their clients might in reality want them to.
Posted by: David Nickol | Apr 27, 2011 11:01:18 AM
Nancy, I honestly have no idea what you're trying to say in your last comment.
David, I think there's an ethical responsibility for lawyers to accept unpopular clients, but there's an even higher responsibility for lawyers to stick by a representation once they agree to take it. There's a few reasons for that that I see:
* If significant work has been done, withdrawing from a case puts a burden on the clients to find a new lawyer, probably pay them more to play catch up on the case, and leaves them with probably weaker representation because the lawyers haven't been working on it as long.
* Even if significant work hasn't been done, withdrawal after agreeing to represent makes it more likely that the decision is due to the unpopularity of the client than other legitimate factors (contract provisions, prices, etc) that may affect the original decision.
With that said, if there's evidence (as there is here) that the decision to withdraw was due to those legitimate factors rather than the popularity of the client, I think there needs to be a strong showing before we condemn K&S.
With that said, Paul Clement is absolutely acting in the finest traditions of the legal profession. (Well, not quite. He is still getting paid a boatload for all this.) But yeah.
Posted by: Andrew MacKie-Mason | Apr 27, 2011 12:57:31 PM
I think the ethical issue in this case centers on the facts that K and S decided to take the case and then backed out. K and S was free not to take from the beginning, but once they took the case they had a duty to follow through regardless of the popularity of the decision. They may actually be subject to sanctions for backing ditching their client like this.
Posted by: AML | Apr 27, 2011 1:31:20 PM
Andrew, ah then we can start to pressure Mr. Anderson and the high priced attorneys who are targeting the Catholic Church for the scandals?
Posted by: Fr. J | Apr 27, 2011 1:41:21 PM
It looks more like it was pressure from within that caused King & Spalding to drop the case, not pressure from clients (although there was some). See the article in the Huffington Post, which lends credence to the explanation that the case had not been properly vetted before it was taken on.
Posted by: David Nickol | Apr 27, 2011 2:12:45 PM
Is there no cause so unworthy that clients of a law firm should not object to it? Also, having read the Huffington Post article above, does a law firm not have an obligation to its employees?
I am still wavering on this one, particularly because I have been looking back to the case of Charles Stimson, the Pentagon official during the Bush administration who criticized law firms for representing Guantanamo detainees. He said, "I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”
His statements were almost universally denounced across the political spectrum, he apologized and basically retracted the statements, and shortly thereafter, he resigned. I don't see an exact equivalence between that story and this one, but there are enough similarities that caution is required before taking different positions on them.
Posted by: David Nickol | Apr 27, 2011 2:40:24 PM
Fr. J, as I said, "I'm honestly not sure where I stand."
Posted by: Andrew MacKie-Mason | Apr 27, 2011 5:09:13 PM
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