Woodrow Wilson said about law and politics, “The profession I chose was politics; the profession I entered was the law. I entered the one because I thought it would lead to the other. It was once the same road; and Congress is [s]till full of lawyers.”
And one hundred years past the day President Wilson was born, law firms are still full of politicians.
Contributions to federal candidates and political committees by attorneys have consistently increased over the past decade, and tend to significantly favor Democrats. According to OpenSecrets, during the 2008 election cycle, a whopping three-fourths of the total $234 million donated by lawyers to federal political candidates and committees went to Democratic causes. One such cause championed by Democrats like our very own President Obama is the opposition of the Defense of Marriage Act (DOMA).
King & Spalding LLP aims to be a nonpartisan firm with close to a 50-50 split between Democrats and Republicans, but not for lack of political ambition. The firm has extensive knowledge regarding campaign contributions, even once offering a webiner to its clients called, “More Than Just Shaking Hands: What Corporations Must Know About The Laws That Regulate Lobbying And Political Contributions.”
King & Spalding may be adept at drafting disclosure statues, but the firm is surprisingly inept at disclosing its internal policy decisions, such as why it decided to stop defending DOMA. As with campaign contributions, a lack of full disclosure may have costly consequences—both on the pocketbook and partner reputation.
This story begins when King & Spalding and former U.S. Solicitor General and partner Paul Clement were hired by several members of the House to defend the DOMA, which denies benefits to same-sex couples. Shortly after the Obama administration said it would no longer defend the federal law, the firm opted out as well.
Whether for moral grounds, political grounds, or general fear of public and Democratic backlash, we can only speculate. King & Spalding never released a statement explaining their decision. We can assume Mr. Clement was privy to the full explanation, however, as he resigned quickly and bitterly. In dissent, he wrote in his resignation letter, “When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.”
Last week, the Washington Examiner reported the news that Attorney General Ken Cuccinelli’s abruptly terminated his office’s relationship with King & Spalding. Cuccinelli said the firm’s actions were “such an obsequious act of weakness that I feel compelled to end your legal association with Virginia.”
And today, King & Spalding experienced a third client casualty. The BLT was the first to report that the National Rifle Association (NRA) is now dropping King & Spalding as an outside counsel (read more about it here). Again, the NRA cites the firm’s inability to perform under political pressure as the reason behind the association’s desire for alternative representation.
It’s impossible to remove politics from law (and the other way around). So firms should own up to decision-making or policy-making to their clients in the same way they would to the IRS. Full disclosure of the fact that this particular case was alienating recruits and/or other clients who support same-sex marriage would have been a respectable justification for dropping DOMA. King & Spalding could have also announced that the issue was too contentious for its nonpartisan firm, or, upon partner approval, taken the Democratic side of the opinion.
Clients seek firms that are action-oriented with confident attorneys. For King & Spalding, silence has made people question the firm’s professional standing. Reputation—in politics and law—means everything.