Wednesday, April 27, 2011

Did King & Spalding Breach Professional Ethics in its DOMA Withdrawal?

By Mike Dorf

In explaining why his law firm was not going to defend the constitutionality of DOMA, after having agreed with House Republicans a week earlier to take the case, King & Spalding partner Robert Hays said: "In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate."  This explanation doesn't really pass the laugh test, but seems designed to avoid the implication that K&S acted unethically in dropping the case.  Lawyers have considerably greater discretion in choosing what cases to take in the first place than they have in dropping existing clients.  By invoking improper vetting, Hays appears to be saying that his firm goofed in taking the case and so should be understood to be redoing the original intake.  He thus could be read to be saying that the K&S decision was not really a decision to abandon a client but a retroactive decision not to take the client in the first place.

That shouldn't wash.  Whether or not there was a procedural irregularity in the K&S vetting of a case, the firm in fact took the case and no matter how much "inadequate vetting dust" Mr. Hays sprinkles on the decision to abandon the case, it remains a decision to abandon, rather than a retroactive decision not to take the case.  Moreover, everybody knows that the real reason K&S dropped the case was the fear of adverse consequences: Chiefly other clients that might stop doing business with K&S and top attorneys who would either leave the firm or not go to work for the firm.  This Talking Points Memo discusses the behind-the-scenes pressure that was brought to bear on K&S.

So, did K&S violate its professional obligations in dropping the case?  The firm is based in Atlanta, though the client is based in DC.  Fortunately for our purposes, the relevant professional responsibility provisions are the same: Both Georgia and DC follow (versions of) the ABA Model Rules of Professional Conduct.  The key provision is Rule 1.16.  I'll quote the Georgia version, but the DC version and the ABA version are mostly the same, with two relevant exceptions I'll mention below.  Part (a) addresses an issue not presented here.  The Rule then continues:
(b) except as stated in paragraph (c), a lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client, or if:
(1) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;
(2) the client has used the lawyer's services to perpetrate a crime or fraud;
(3) the client insists upon pursuing an objective that the lawyer considers repugnant or imprudent;
(4) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
(5) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or
(6) other good cause for withdrawal exists.
(c) When a lawyer withdraws it shall be done in compliance with applicable laws and rules. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation.
(d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned.
The maximum penalty for a violation of this Rule is a public reprimand.
Did K&S comply?  Here are a few reasons why the answer could be yes.  First, given that the representation had only been underway for a week, perhaps there was no "material adverse effect on the interests of the client."  I think the answer depends on how one understands that term.  If the question is whether the House Republicans were prejudiced by the actions of K&S, the answer may be no.  They only lost a week and are thus not really worse off than they were before they hired K&S.  Moreover, the pro-DOMA argument will still be made by Paul Clement, the outstanding attorney they had in mind as the lead lawyer.

However, it's not clear that the Rule calls for that sort of reliance inquiry.  It may simply ask whether the client is worse off than it was before the withdrawal from representation.  The answer to that question seems pretty clearly yes.  Clement's new firm is a conservative boutique without all of the resources of K&S.  Moreover, the public flap probably means that if Speaker Boehner wants to take the case to a big firm, he'll have an even harder time finding one now than he would have before the K&S decision and un-decision.  So there's a pretty good argument that there was material adverse effect on the client.

What about the exceptions?  Exception (3) for a client's insistence on a "repugnant" course of action could work.  Many people, including me, find DOMA repugnant, but nothing has changed to make defense of DOMA more repugnant now than a week ago, when K&S took the case.  A legal ethics scholar with whom I spoke insisted that the exception is available even if nothing has changed since the representation began, which strikes me as facially consistent with the text of the exception but nonetheless at odds with the overall structure of the Rule.  It's also worth noting that one of the key differences between Georgia and DC is that the DC Code does not contain a repugnance exception.  So, despite my lack of expertise in this area, I'm going to buck the experts and say that Exception (3) is best read as not applying in circumstances like these.

Exception (5) for an "unreasonable financial burden" may work.  In light of the campaign targeting the other clients of K&S, keeping the case could have cost K&S quite a bit.  But I suspect this exception is meant to cover actual direct costs of representation, rather than indirect costs due to public opprobrium.  Interpreting the exception otherwise would mean that a lawyer would be justified in withdrawing from representing an unpopular client any time that unpopularity led to financial harm to the lawyer.  That seems inconsistent with an important purpose of the Rules, which is to promote representation for everyone.  So I think the better (though not inevitable) reading of Exception (3) is that it shouldn't apply.

That leaves the catchall of "other good cause" for withdrawal.  For the reasons just stated, I don't think that "adverse publicity" should count as other good cause.  Nor should improper vetting, unless that vetting failed to uncover a conflict of interest or fraudulent misrepresentation by the client, which is not the case here.

Thus, there is a decent argument that K&S did violate Rule 1.16 here, although I acknowledge that this could just be my own lack of expertise talking.  There have been several posts on Legal Ethics Forum on the controversy, and none of them even mentions Rule 1.16, which could mean that my analysis is so wildly off base that it doesn't even register on the radar screen. Or it could mean that the experts are blinded by their assumptions and an outsider like me knows the truth.  (Anyway, I'm not entirely an outsider.  I am a member of the bar who practices law, and while a faculty member at Columbia, I did teach legal ethics in a mini-course most years.  Plus, the so-called experts in legal ethics in the legal academy are mostly just moral philosophers who happen to teach legal ethics.  I can read the rules as well as they can.  So can you.)

If there is a violation, that could call into play the other key difference between Georgia and DC.  In Georgia, the maximum penalty for a violation of Rule 1.16 is a public reprimand.  The DC version of the Rule does not contain that limitation.  Fortunately for Mr. Hays, he's a member of the Georgia bar, not the DC bar, but other members of the firm who may have been involved in the termination decision are members of the DC bar.


JohnSteele said...

You're not wildly off base, but having worked inside law firms and having represented clients in similar situations, my sense is that the case falls under the "no prejudice" clause, given that that the client still has Clement and as far as we can tell there was imminent deadline pending, and for that matter most sophisticated clients and law firms tend to treat these situations as mutually "at will" unless there's some unique reliance upon that particular firm. I'm also guessing that the firm will not receive any revenue for work already done -- which also demonstrates a lack of prejudice to the client.

John Steele

egarber said...

I know nothing about this stuff, but I suspect it has happened before, maybe in lower-profile cases. Are there any ready examples? In this case, I guess you can argue that the high profile nature creates unique challenges, since big firms will likely run away from it, given the public pressure.

Also, I read that one concern was that lawyers couldn't write or say anything about gay marriage generally, while the firm owned the case. I'm guessing that overstates the restriction, but even so, that's something the firm would have known at the outset. Complaining now is sort of like saying, "I'm leaving my job as a stadium usher, because I have to work weekends."

michael a. livingston said...

I have mixed feelings about this. I don't like them abandoning the case for essentially political reasons, but it is a private law firm, and I suspect this has happened before. I personally find it difficult to make heads or tails of ethical rules, which seem to be written largely to protect the profession, although your analysis seems sound.

Paul Scott said...

Mostly off topic of the OP, but one of the most notable things about this incident is how marginalized the opposition to equal rights has become. When I was in law school - fifteen years ago - this would have seemed impossible. These days it seems clear to me that DOMA and other blatantly discriminatory laws will end within the next ten to fifteen years. If the SCOTUS was not packed with extreme conservatives (such that Kennedy appears moderate), it would probably happen sooner.

CEP said...

I think there's another aspect of the (b)(3) inquiry that is getting less attention than it should. Let's pretend for a moment that it was to be an attack on DOMA, not a defense of it; or that it relates to the Defense of Mom Act, in which we all honor mothers on Mother's Day.

That's not the repugnant issue.

The repugnant issue is that overreaching restriction on private speech by all professional employees of the firm on the subject. To my mind, that's a far worse problem than the subject matter of representation, and is a true reflection of "failure of intake process".

AF said...

Like John Steele, I think this falls under the "no material adverse effect" clause. In fact, this seems like a paradigm case of no material adverse effects, as it is the rare case in which the client will be represented by the *same lawyer* after the withdrawl. Your argument that the House Republicans are worse off due to the smaller size of Clement's new firm seems to read the word "material" out of the Rule. It might be different if there were reason to believe that Clement's new firm couldn't handle the case -- as might be true if large-scale discovery had to be conducted -- but that isn't plausible in the case of this appeal, for which Clement and a few highly qualified colleagues are more than enough manpower.

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