A Forum for Opinions on News, Politics, and Life
April 27th, 2011
By Dan Miller
An honorable attorney has many ethical obligations, or so I was told in law school and so I learned as a member of the profession over a period of about thirty years before retiring in 1996. Among these obligations is not to fire a client due to political — or politically correct — pressures. If the attorney has a material conflict with a client — for example, if a client who has told the attorney that he behaved as charged in an indictment nevertheless insists on perjuring himself at trial — the attorney could not represent him both ethically and effectively. He owes it to the client to fire him after getting the consent of the presiding judge without breaching any attorney-client privilege in the process. That the client is generally considered guilty, undesirable or is otherwise unpopular, or that these factors may adversely impact his firm’s revenues, are not proper bases for firing him.
In the circumstances reported here, the situation appears to have been odd. Paul Clement, a partner in the law firm of King & Spalding, resigned from the firm when the firm withdrew from a case after he and his firm had accepted the representation of the House Bipartisan Legal Advisory Group to argue in support of the constitutionality of Section 3 of the Defense of Marriage Act (DOMA). They had accepted the case after the Department of Justice had declined to make that argument. Less than two weeks later, the firm withdrew from this representation due, apparently, to pressure from various clients, homosexual rights advocates and others. Mr. Clement’s letter of resignation from King & Spalding is available here.
It is probably best that the Department of Justice had declined to argue the constitutionality of DOMA because it would almost certainly have done so ineffectively. That seems to be what happened before a federal district court when the State of California — as well as the private litigants who actually wanted to pursue the case effectively — made ineffective efforts to persuade that court that modification of the California Constitution, pursuant to a referendum to define marriage as between one man and one woman, was permissible under the United States Constitution. An attorney owes his clients his best, not his indifferent or worst, efforts. More effective representation at the trial court level in the California proceeding might well have produced a different result than the eventual holding that the new provision of the California Constitution was not permissible. If not, a better record for appeal might well have been produced. That case is similar to the one in which King & Spalding was involved.
Having accepted the representation, the King & Spalding firm had an obligation to continue with it as effectively and as persuasively as its talents — as distinguished from its other clients, financial interests and pressure groups — permitted. Mr. Clement appears to have had a far better understanding of this rudimentary principle of legal ethics than did his former firm.
Even Attorney General Holder — who contends that DOMA is unconstitutional — is currently defending Mr. Clement’s action. So is this writer at HuffPo. It is not rocket science; it is simple legal ethics.
Lawyers are already quite sufficiently disparaged. To add to that disparagement is good neither for the practice of law nor for the firm involved.
(This article was also posted at The PJ Tatler.)
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