I've been admitted to practice law in three states for over thirty years and the self-inflicted controversy that has engulfed King & Spaulding after its short lived representation of the House Republicans in defending DOMA underscores to me yet again the fact that much of what is "ethical" under the rules of the legal profession is not what I consider equal to what is morally right. Frankly, I do not handle criminal law matters for the simple reason that in some circumstances I could not represent someone I believed to be guilt - especially in violent crimes such as murder or say rape. Yet it's "ethical" for attorneys to represent such defendants and to endeavor to get them the best deal possible, perhaps even putting the victims on trial in the process. Is it morally right? Then there are gay bashing divorce attorneys who seek to destroy the gay spouse and prejudice the court against the gay litigant so as to get the maximum for their client. Many deem it ethical, but is it moral? In my view, it is not. The same goes for defending a law that has as it only real purpose the stigmatizing and denigration of a group of citizens because they fail to conform to the toxic Christianist version of Christianity. HRC and others have been lambasted for pressuring King & Spaulding to withdraw from defending DOMA. I believe that HRC did the right thing - and often all too critical of HRC as long time readers know. Kerry Eleveld has a post at America Blog Gay that looks at the controversy. Here are some highlights:*
The firm took an immediate hit from most legal observers who viewed dropping the case as tantamount to legal blasphemy. LGBT advocacy groups, ours included, found themselves playing defense after being criticized for blasting the law firm for taking the case. And House Republicans suffered a two-fer: First for the hypocrisy of retaining an outside law firm for $520 an hour (up to $500,000) while they preach fiscal discipline; then enduring the embarrassment of watching that firm breach the contract likely due to the backlash of defending a discriminatory law that many, including President Barack Obama, deem unconstitutional.
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Untangling the rights and wrongs in this situation is impossibly confounding, and reasonable people can and have disagreed to be sure. But let’s start where most legal eagles concur: King & Spalding did not have to accept the case, and DOMA, which is notably a law and not a person, does not have a right to representation.
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And here already, comes a point of divergence. Monroe Freedman, a leading legal ethics scholar and professor at Hofstra Law School, believes that both the firm and Clement came down on the wrong side of morality when they accepted the case.
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Outside of certain criminal proceedings, Freedman says, “There’s absolutely no doubt that a lawyer has complete discretion to take or not to take any particular client. For that reason, it’s my view that, that decision -- whether to take a client -- is the most important point of moral decision making for the lawyer.
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“And therefore, in my view, it was immoral for Clement and for King & Spalding to agree to defend DOMA. That is my personal moral judgment,” Freedman says, adding, “others would disagree. But I feel very strongly that defending DOMA is itself an immoral act.
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However, having agreed to represent their client, Freedman adds, “It was at that point unethical for them to pull out. I’m not talking about immoral – it may have been the moral thing to do – but ethically speaking, it was wrong to embarrass the client that way publicly.” Clement, a former U.S. solicitor general under President George W. Bush, resigned from King & Spalding over his firm’s decision to drop the case.
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I believe it would have been a mistake for advocates to forfeit the opportunity to make known their views about King & Spalding’s representation. Letting the moment pass without objection would have been a missed opportunity to send a political message, and advocates shouldn’t be expected to approach the legal system the way a lawyer would. We quite simply have different interests at stake – theirs is to preserve the sanctity of the legal system, and ours is to advance the cause of freedom for lesbian, gay, bisexual, and transgender Americans.
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[I]t’s particularly problematic for the government to contractually restrict the First Amendment rights of every employee -- from the person working in the mail room all the way to the lead counsel of the case.
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If there’s one truth that can be gleaned from the DOMA fallout this week, it’s that judging the tenor of issues related to the fair and equal treatment of LGBT Americans is a particularly precarious endeavor at the moment. Though no one has established the exact the reasoning behind King & Spalding’s 180, many believe they simply underestimated the backlash of taking the case.
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“There is speculation -- and it’s where I would put my money if I had to -- that they were surprised to find that one or more of their major clients disapproved of them taking on this retainer,” says Freedman, referring to clients such as General Electric and Coke.
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I will always try to error on the side of what is moral versus what is "ethical" in terms of legal ethics. I want to be able to look at myself in the mirror in the morning. For far too many attorneys, in my view, that is never a factor.
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