King & Spalding, the law firm hired to defend the Defense of Marriage Act against legal challenges, faced some pretty strong backlash from clients and pro-gay lobbying groups after accepting the case. Now it faces a whole different kind of backlash after deciding to drop the case a week later.
King & Spalding just can’t win, it seems.
The firm announced it had accepted the case on April 18th, for what was later revealed to be a $500,000 contract with House Republicans. Major clients of King & Spaulding, reportedly including Coca Cola, immediately cried foul. The Human Rights Campaign also zeroed in on the company, publicly calling on them to reverse course and planning massive PR campaigns against the law firm if it didn’t back away from the case.
As clients, the House Republicans probably didn’t help themselves any with the conditions they placed on the firm, either: lawyers at King & Spaulding, even if they weren’t directly involved with defending DOMA, were essentially given a gag order as a condition of the contract. Employees were specifically required to “not engage in lobbying or advocacy for or against any legislation [to] alter or amend in any way the Defense of Marriage Act” by the contract.
Realizing they had underestimated the ramifications of accepting the case, and perhaps seeing years of strong support of LGBT clients and employees about to be undone by a single case, King & Spaulding pulled out of the case. Gay rights advocates rejoiced, the HRC backed off its PR assault and praised the firm, and it seemed like King & Spaulding had stepped back out of the line of fire.
Now they’re facing reprisals from conservatives groups instead. Virginia Attorney General Ken Cuccinelli, who is coincidentally a Republican, has announced that his office will no longer hire King & Spaulding to help represent Virginia in legal matters. In his letter to the firm, he had this to say:
Virginia does not shy away from hiring outside counsel because they may have ongoing professional relationships with people or entities, or on behalf of causes that I, or my office, or Virginia as a whole may not support. But it is crucial for us to be able to trust and rely on the fact that our outside counsel will not desert Virginia due to pressure by an outside group or groups.
Virginia seeks firms of committment, [sic] courage, strength and toughness, and unfortunately, what the world has learned of King & Spalding, is that your firm utterly lacks such qualities.
Not longer after, the National Rifle Association also announced that it would no longer be requiring King & Spaulding’s services. The NRA called the law firm’s decision to back out of the DOMA case “indefensible” and said that it raises doubts about the firm’s “ability to be a reliable and effective advocate for any client facing potentially controversial litigation.”
So, here’s my dilemma… I don’t agree with the Defense of Marriage Act, and I applaud King & Spaulding’s decision not to participate in the defense of DOMA… But I have a hard time disagreeing with groups that are complaining about the firm’s eventual withdrawal from the case.
Now, my liberal friends are probably up in arms already that I’m giving any ground to the “enemy” here… But the fact remains, King & Spaulding screwed the pooch by agreeing to take a controversial case without really considering the possible results. (To be fair, the firm itself said that “the process used for vetting this engagement was inadequate” so clearly we’re on the same page here.) I know I would be mighty pissed off if my lawyer accepted my case and then later changed his/her mind because of public pressure.
Does that mean that I think they should have soldiered on with the case, even though their heart was no longer in it? Well frankly, I don’t know how to answer that. They really were in a lousy situation, a no-win scenario, a legal Kobayashi Maru you might say… Having hastily agreed to a case that they probably shouldn’t have taken, they were pretty much screwed no matter what they did from then on out.
Hypothetical: Let’s say that the firm had agreed to litigate against the Defense of Marriage Act on behalf of same-sex couples who wanted to be legally married… And then conservative groups freaked out, called for boycotts, etc. If King & Spaulding had backed out of the case under those circumstances, gay rights groups would lose their minds, saying that the firm had sold out to the clamoring of conservative bigots.
The fact is, your approval or disapproval of King & Spaulding’s decision to drop the case probably depends mostly on your opinion about DOMA. So by default, a lot of people are going to be pissed off at the firm no matter what, now.
Lesson learned: don’t take a very visible, controversial case with national ramifications unless you’ve carefully considered (and prepared for) the public fall-out. At this point, King & Spaulding has been backed into a corner and will likely be tentatively clawing its way out for quite some time.