This Bothers Me

Inevitably, there's talk of action against King & Spaulding, the law firm retained by House Republicans to defend DOMA in federal court.

Jon Davidson, legal director of Lambda Legal, the nation's oldest and largest legal organization working for LGBT equality, had one word on the firm's decision to take the case: "Depressing."

"I think it's going to hurt them in their recruiting of future lawyers," he told The Huffington Post.

King & Spalding has touted its ties to Lambda Legal in recent years. In 2006, the firm announced it was a national sponsor of the Lambda Legal Defense and Education Fund. In its 2007 "Achievements in Diversity" report, the firm boasted, "Among other programs aimed at diverse law students, King & Spalding is a national sponsor of Lambda Legal, provides pro bono work for Lambda, and sponsors the organization in New York and Atlanta."

Davidson said in light of the DOMA announcement, he is no longer comfortable working with King & Spalding on cases.

"As legal director, I would take the position that we should not use them as cooperating attorneys with us -- that is, people who work with us on a pro bono basis in cases," said Davidson. "I wouldn't want to team with them, so long as they're actively harming our community by defending DOMA."

This is pretty lame. Lawyers are supposed to be advocates for their clients, but they wind up taking cases in which they know the client is wrong frequently enough that this shouldn't cause a ripple. As for Davidson's comment that "they're actively harming our community," they're only harming us if they win, and given the recent track record of same-sex marriage cases, that starts to look fairly remote. If they lose, they've given us a big boost.

On a deeper level, this is equivalent, in kind if not degree, to the attempts to oust the Iowa Supreme Court justices because of their decision on same-sex marriage. It's pretty un-American.

So, King & Spaulding agreeing to take the case doesn't upset me all that much -- Boehner's at least savvy enough to look for someone who can at least mount a credible defense, unlike Liberty Counsel or another of the wingnut legal groups.

What does bother me is this:

The contract, which was entered into with U.S. House of Representatives General Counsel Kerry Kircher on behalf of the House's Bipartisan Legal Advisory Group to defend DOMA in court, contains a provision that prohibits all King & Spalding attorneys and non-attorney employees from any advocacy to "alter or amend" DOMA.

The paragraph in question states that "partners and employees who do not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation ... that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement."

Moreover, the preceding paragraph, 4(f), contains a similar prohibition on the partners and employees who are participating in the litigation. Paragraph 4(g), thus, clearly is intended to apply to those who do not participate in the litigation.

Here's the agreement; the paragraphs in question are on page 3, paragraphs f & g:

kingspaulding



As the article points out, in some states this is illegal, and this provision is the one that I think ultimately could be the biggest liability for King & Spaulding, which makes a lot of noise about its inclusive non-discrimination policies. (Not that all that many of their attorneys are actually gay.)

What bothers me is that they didn't have to agree to that provision. I wonder why they did.

In the meantime, can we stop all the huffing and puffing until there's a reason for it?