- The Washington Times - Wednesday, May 4, 2011

More than a week after a top Atlanta law firm dropped the contract to defend the federal marriage statute under pressure from gay groups, the legal and public relations fallout shows no signs of easing.

In addition to losing one of its top lawyers in protest, King & Spalding has lost at least two high-profile clients, while its decision to cancel its contract with the House of Representatives to defend the 1996 Defense of Marriage Act (DOMA) has sparked a lively debate in the nation’s law schools and on legal blogs.

Stanford Law School professor Deborah L. Rhode wrote this week in the National Law Journal that the law firm was “right to withdraw” from the case because of its concerns, but others, including U.S. Attorney General Eric H. Holder Jr., have sharply criticized the move.

Separately, the National Rifle Association and the Commonwealth of Virginia have both dropped the large Atlanta-based firm from their roster of law firms, with both citing the DOMA decision.

While the firm deals with the fallout, Paul D. Clement, the respected former U.S. solicitor general who resigned from King & Spalding after the firm canceled the contract, has agreed to a new $500,000 contract with the House Administration Committee to continue the DOMA case. Mr. Clement will now help defend DOMA, which essentially rejects gay unions in the federal definition of marriage, at his new firm, Bancroft PLLC.

King & Spalding Chairman Robert D. Hays Jr. said April 25 that his firm was dropping the DOMA contract owing to “inadequate” vetting of the case.

House Republican leaders sought legal representation for DOMA after President Obama and Mr. Holder announced they would no longer defend the law, based on their belief it is unconstitutional.

In her article in the National Law Journal, Ms. Rhode wrote that while criminals need “vigorous advocacy,” the “moral calculus is different” in civil cases such as the DOMA litigation.

“Except in rare circumstances, civil claimants have no right to counsel,” she said. “The notion that lawyers should check their conscience at the door” has led to public policy fiascos in such areas as finance and public health, she added.

Gay rights groups were not using “McCarthyite” tactics in pressuring King & Spalding to withdraw, she added. “They were exercising their own rights to expression” in the service of their allies, which is “precisely” the “kind of pressure” that other groups have used to end discrimination.

But New York University law professor Stephen Gillers echoed many in the legal world when he said King & Spalding had “caved in.”

King & Spalding can no longer be relied on as outside counsel, NRA General Counsel David Lehman wrote in a May 2 letter.

The NRA is “often involved in controversial issues,” Mr. Lehman wrote. Anyone hired as outside counsel is expected to “zealously advocate for our interests and not abandon the representation due to pressure from those who may disagree with us.”

Days earlier, Virginia Attorney General Kenneth T. Cuccinelli II also told the firm that its services were no longer needed for any state agency as long as he was in office.

Dropping the DOMA contract “was such an obsequious act of weakness that I feel compelled to end your legal association with Virginia, so there is no chance that one of my legal clients” will be similarly discarded, Mr. Cuccinelli wrote to King & Spalding official Joseph E. Lynch.

• Cheryl Wetzstein can be reached at cwetzstein@washingtontimes.com.

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