‘unfortunate misunderstanding’…

A post of mine on May 17 titled The Difference Between Defending DOMA and Defending Neo-Nazis and the ACA discussed a post on the Blog of Legal Times that summarized part of a lengthy article published that day on Daily Report Online. These websites and their respective hard-copy publications, Legal Times, based in New Jersey, and Daily Report, based in Atlanta, are part of American Law Media, which publishes The National Law Journal and several local law journals around the country. The Daily Report Online article is titled “Inside K&S’s DOMA debacle.”

K&S is Atlanta-based mega law firm King & Spalding. DOMA is the Defense of Marriage Act. King & Spalding’s debacle is that … well … read my earlier post.

Or, better yet, read the full Daily Report Online article, by Daily Report reporter Meredith Hobbs. The Blog of Legal Times article, which, as I said, summarized only part of the article—a small part, it turns out—provided an, um, password-protected link to the source article, useful for all you folks who subscribe to the Daily Report. For those of you who don’t and are interested in the DOMA litigation or in this particular controversy, here it is (republished with permission):

Her full article is below:

Fulton County Daily Report

Wednesday, May 11, 2011
Inside K&S’s DOMA debacle
Firm’s Washington chief says review process wasn’t followed due to an ‘unfortunate misunderstanding’
By Meredith Hobbs, Staff Reporter

Following a barrage of criticism over King & Spalding’s withdrawal from defending the Defense of Marriage Act two weeks ago, the Washington office managing partner broke the firm’s official silence and made a statement to the Daily Report accepting responsibility for the “unfortunate misunderstanding” and “breakdown in communications” that led former partner Paul D. Clement to contract with the U.S. House of Representatives to defend the law.

Other than a short statement on April 25 by firm chairman Robert D. Hays Jr. calling the vetting process inadequate, the statement by J. Sedwick “Wick” Sollers gives the first insight that the firm has offered publicly into how it came to defend DOMA, only to withdraw from the case 11 days later.

Sollers’ full statement read: “Although our chairman Robert Hays has issued a short statement saying he assumed ultimate responsibility for any mistakes that were made, I want to make sure the record is clear that I was the member of firm management in primary contact with Paul Clement regarding this matter. As I have reflected on this, despite the fact that our standard client/matter review process was not followed, it was reasonable for him to believe that the firm would accept the matter. This was an unfortunate misunderstanding with a friend whom I personally recruited to the firm and strongly supported. I am deeply disappointed by Paul’s departure and regret the breakdown in communications.”

Although the statement from Sollers indicated that Clement was given some form of encouragement to take the case, it maintained Hays’ position that the vetting process was inadequate. Sollers’ statement doesn’t conflict with a blistering public letter of resignation addressed to Hays that Clement released to the media on April 25.

Clement took the highly unusual step in his letter of publicly criticizing his former firm for “abandoning” a client because of public pressure, but he offered no details on what he viewed as the firm’s support for taking the case.

In that letter, Clement said, “I would have never undertaken this matter unless I believed I had the full backing of the firm. I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides.”

“When it comes to lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism,” he wrote, adding that “efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”

The gap between Hays’ statement that the matter was inadequately vetted and Clement’s that he believed the firm was backing it stirred up a firestorm in the media.

Editorial writers castigated King & Spalding for withdrawing from the controversial case, and the firm has faced vehement criticism outside the legal community, first from gay rights supporters and now from anti-gay rights groups.

The Daily Report’s conversations with two lawyers within the firm who spoke on condition that they not be named because King & Spalding has prohibited its people from talking publicly about the controversy, as well as a third person familiar with the situation, said that the DOMA matter was not submitted to the firm’s business review committee. They say the firm is being criticized for dropping a case it never properly accepted.

Clement has not spoken publicly about the matter since releasing his resignation letter. He did not respond to several calls and emails from the Daily Report over the past week and after receiving Sollers’ statement.

The firm’s only previous statement on the DOMA matter was that of Hays announcing the firm’s withdrawal from the engagement April 25, just a week after it became public that Clement had agreed to represent the U.S. House. “In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate,” Hays said, adding that he took responsibility for any mistakes.

King & Spalding had not done any work on the case when it disengaged; there are no filings in Windsor v. U.S., one of the suits challenging the law, from when Clement filed the April 18 motion to intervene through April 25, when the chair of the firm’s business review committee, New York partner Richard A. Cirillo, filed a motion for King & Spalding to withdraw.

Clement left King & Spalding for a small Washington boutique, Bancroft, the same day to stay on the DOMA matter.

The sources who spoke to the Daily Report said that the DOMA matter was never vetted by the firm’s business review committee before Clement signed a contract obligating the firm. They said the committee, composed of five partners from different offices, immediately began reviewing the case Tuesday, April 19—the day after the firm learned of the contract—and rejected it the next day.

“The firm did not back out. We never agreed to take it,” said one of the King & Spalding lawyers.

Clement signed the engagement contract to handle the DOMA matter on April 14, but his involvement did not become public until April 18, when he filed a motion to intervene in Windsor v. U.S. in U.S. District Court for the Southern District of New York.

The judge in the case had given Congress until April 18 to intervene after the U.S. Department of Justice in late February announced it would not defend challenges to Section 3 of DOMA, defining marriage for federal purposes as a union between a man and a woman, because it violates the equal protection clause of the Constitution.

The sources said the firm’s partners were taken by surprise when the news broke that Clement had taken the DOMA engagement. By the next day, the sources said, some partners had learned that the case had not been submitted for vetting to the firm’s business review committee. All matters at King & Spalding must be approved by this committee, they said, adding it was discovered that there was no matter file for the DOMA case in the firm’s system.

Only the business review committee can create a matter file, said the sources. Without one, an engagement effectively does not exist, since there is no way to bill hours to it. The sources said nobody at the firm has the authority to override the decisions of the business review committee.

King & Spalding, like other large firms, is managed by practice groups, not offices. Partners submit a potential matter to the business review committee with approval from the practice group leader. A conflicts check must be performed and, if a case checks out, the business review committee facilitates further vetting, said one of the sources.

“Any matter that is controversial in any way or where there is a discounted rate goes through the business review committee,” said one of the sources, noting that the DOMA engagement was both controversial and had a discounted rate.

The contract that Clement signed with the House—which was made public by House Minority Leader Nancy Pelosi—specified a blended rate of $520 per hour for Clement and two other partners, with a ceiling of $500,000 over a two-year period. Clement’s customary rate has been reported at $800 per hour. At least 12 suits have been filed challenging Section 3 of DOMA.

All of the King & Spalding sources said that there was adamant opposition to the DOMA case from within the firm. One of the sources said there has never been such opposition by the firm’s partners to an engagement: “never in these numbers and vehemence to this magnitude.”

“It sticks a finger in the eye of people,” said one of the sources, referring to the firm’s gay lawyers and staff. An associate of the firm is president of Georgia’s gay legal group, the Stonewall Bar Association, while a King & Spalding partner is on Stonewall’s board.

One source said the case also did not fit the firm’s business mission. “King & Spalding is a corporate law firm—not a constitutional firm. This is not the kind of case the firm generally takes.”

There was also opposition to a clause in the contract gagging the firm’s people from any advocacy around DOMA, said the sources, who added that the clause was likely illegal in California, where the firm has two offices.

Democrats on the Committee on House Administration, which reviews outside counsel contracts, said the majority Republicans on their committee kept Clement’s contract secret from them. But a King & Spalding source said the client’s possible concerns over confidentiality would not have prompted anyone at the firm to bypass the review committee.

“The idea that the business review committee cannot keep client confidentiality a secret is absurd,” the source said.

According to news reports, Clement’s new contract with the House is the same as his old one—for the same rate and fee and with the same ban on advocacy around DOMA by firm employees. But the muzzling clause now is for seven lawyers and staff at a Washington boutique where members share a conservative ideology, according to their website biographies, rather than for more than 800 lawyers, plus staff, with disparate political and social outlooks in 17 offices in the U.S., Europe, the Middle East and Asia.