Legal ethics and the defense of the Defense of Marriage Act

The decision by a national law firm to drop its contract to defend the Defense of Marriage Act on behalf of the U.S. Congress in the face of criticism from gay rights groups, and the subsequent resignation in protest of the partner assigned to the case, raises thorny issues about legal ethics and the effective pursuit of justice. DOMA, as the law is known, prohibits the federal government from recognizing same-sex marriages legally sanctioned by the states and frees states that do not allow gay marriages from recognizing those performed elsewhere. It is an odious law, and the Obama administration was right in concluding that it is unconstitutional and ordering the Justice Department to stop defending it. And Gay rights groups were perfectly justified in criticizing the firm, Atlanta-based King & Spaulding, for taking on the case.

But Paul Clement, the former U.S. Solicitor General who quit the firm over its decision, also makes an excellent argument: Even unpopular clients deserve quality legal representation, and a lawyer's personal beliefs are irrelevant to his advocacy. If lawyers dropped clients just because the public didn't like them, the justice system would collapse.

So who's right here?

For starters, it's important to consider the nature of the litigation at hand. Lawsuits challenging DOMA are not the same as criminal cases, in which a client's right to an effective defense is guaranteed by the Constitution. Criminal defendants who cannot afford lawyers are assigned one by the courts. That's not the case in civil matters; despite advocacy from many in the legal community, the right to counsel is recognized only in criminal cases. No one could have been forced to take up the cause of the Republican leaders in the House of Representatives who want to defend this law, and King & Spaulding's initial decision to do so was entirely elective. The fact that a client asks for an attorney's help in such a matter in no way requires the lawyer to take the case.

If the firm had refused to take the case in the first place, Mr. Clement might have been disappointed — or perhaps not; he has not said what his personal views of DOMA are — but he would have had no grounds for the blistering resignation letter he sent his partners accusing them of abandoning a key principle of legal ethics. King & Spaulding — incidentally, the firm that former Gov. Robert L. Ehrlich Jr. just joined — makes much of its efforts at diversity and inclusion of gay, lesbian and transgender attorneys and employees. The firm should have taken a pass on the $500,000 contract in the first place.

But the fact that King & Spaulding did initially agree to defend the law puts matters in a different light. As Mr. Clement wrote in his letter: "I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides. But having undertaken the representation, I believe there is no honorable course but for me to continue it."

There is, however, another wrinkle at work. The contract between the firm and the Congress included an unusually broad clause enjoining the firm from activity that could constitute a conflict with its defense of the law. The clause not only prohibits the firm from taking on any legal activity on the other side of the issue — which is standard — but prohibits the firm's lawyers or other employees from engaging in "lobbying or advocacy for or against any legislation … that would alter or amend in any way the Defense of Marriage Act" that is pending before the House or Senate or any committee thereof.

Read literally, that means a janitor at the firm's headquarters in Atlanta would be prohibited from writing a letter to his congressman opposing the act — or even suggesting it be broadened. Mr. Clement is right that his personal views have nothing to do with his representation of a client, but this clause does make an issue of the personal views of every single employee of his firm, whether they are involved with this case or not.

Perhaps the implications of that stipulation are what the firm's chairman, Robert D. Hays Jr., was referring to when he said the contract had not been properly vetted. Such an extensive restriction might well constitute an illegal restriction on the firm's employees' rights to free speech and political activity. It certainly belied the firm's own commitment to the cause of equality for all.

But beyond the questions of legal ethics, this turn of events is instructive of where the debate over DOMA rests today. When the law was passed in 1996, it was supported by overwhelming majorities in both houses of Congress and was signed into law by President Clinton. Fifteen years later, a law firm that represents the most mainstream of corporate clients is taking the unusual step of withdrawing from a contract to defend it. Mr. Clement noted in his letter that "defending unpopular clients is what lawyers do," and he is quite right. But spending half a million dollars to defend an unpopular law should not be what Congress does. House Speaker John Boehner should use this opportunity to drop the matter and let another discriminatory law fade into history.