A bad example: King & Spalding bails out on its new client: Congress

King & Spalding, the Atlanta-based law firm, announced this week that it has ditched its new client: the United States House of Representatives.  After a wave of criticism the firm withdrew - saying its agreement to represent the Congressional majority had not been properly "vetted".  Defense of the Defense of Marriage Act  (DOMA)  was to be led by former Solicitor General Paul Clement - who quit the firm out of loyalty to his client.  

Promises had been extracted when the representation was undertaken: no one working for King & Spalding could speak out on the issue.  King & Spalding had agreed 

"that all of of its partners and employees who do not perform services pursuant to this agreement will not engage in lobbying or advocacy for or against any legislation (i) that is pending before the Committee during the term of this Agreement or (ii) that would alter or amend in any way the Defense of Marriage Act and is pending before the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement."

The restrictions on speech Congress demanded are not impermissible.  They are not required by but are  consistent with the principle in RPC 1.10 (a) that imputes to an entire firm any conflict of interest that one lawyer in a firm has.  I think Congress is within its rights to insist that a firm (as a unified entity), as a condition of representation, not participate in any advocacy related to the issue.  I suppose that they feared headlines like "K&S LGBT Associates speak out..."

The strong form of criticism - K&S is a bad actor because they represent a bad person - clearly should be rejected.  As RPC 1.2 makes clear, a lawyer is not responsible for a client's conduct.  That is an essential part of  professional independence.  Campaigns denouncing lawyers for affording representation to unpopular clients are therefore  to be deplored.   

Theodore Olson

But the softer version "don't hire K&S" or "do hire K&S" because they stood up for the (wrong) or the (right ) principle is a much closer question.  When Fordham awarded the annual Stein Prize  to Ted Olson my stomach knotted.  The man gave us Hopwood v. Texas (abolishing affirmative action in Texas schools); Bush v. Gore (halting the Florida recount and handing the White House to the candidate who lost the popular vote); and Citizens United (the green light for unlimited corporate political spending).  But he also brought us Perry v. Schwarzenegger - the challenge to California's Proposition 8, in partnership with David Boies.  So should Olson be honored or deplored?  In the end I choose the former.
Update (5/5/11):
This issue continues to provoke debate.  Stanford Law prof. Deborah Rhode has a new piece in the National Law Journal.  And there has been a lot of comment  on the issue (and Rhode's view) at Legal Ethics Forum.