The Wall Street Journal brought attention to a Fulton County Daily Report article providing additional information about the circumstances of -- and problems with -- King & Spalding's representation of the House Bipartisan Legal Advisory Group in its defense of Section 3 of the Defense of Marriage Act.
On April 14, the House general counsel signed a contract for the representation with Paul Clement, a partner at the time at King & Spalding and the former solicitor general during the George W. Bush administration. The decision to reatain King & Spalding was revealed on April 18, and the contract was released the next day. Metro Weekly and other publications examined provisions of the contract, including the "gag rule" and the "$500,000 cap."
A few days later, on April 25, King & Spalding announced that they were withdrawing from representation of BLAG, and Metro Weekly followed up the next day with analysis of the questions raised in the aftermath of the withdrawal.
The withdrawal request in the one case in which King & Spalding had filed paperwork already was Windsor v. United States. The request to the court, as noted at the time by Metro Weekly, was signed by Richard A. Cirillo, a partner in the firm's New York office. Cirillo, according to his firm biography, serves as chair of the firm's "Business Review (Ethics) Committee."
The firm's chairman, Robert Hays Jr., issued a statement that day, noting in part, "In reviewing this assignment further, I determined that the process used for vetting this engagement was inadequate."
Clement, who also resigned from King & Spalding that day, wrote in a letter to the firm, "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. ... If there were problems with the firm's vetting process, we should fix the vetting process, not drop the representation."
Today's report from the Journal, however, suggests that the "problems with the firm's vetting process" were rather clear:
[T]he Daily Report spoke to two firm lawyers and a third source anonymously who said that the DOMA matter was not fully submitted to King & Spalding's business review committee, a firm requirement, before Clement signed a contract obligating the firm. They said the committee immediately began reviewing the case the day after the firm learned of the contract—and rejected it the next day, according to the Daily Report.
The sources said the firm's partners were taken by surprise when news broke that Clement had taken the case. "Any matter that is controversial in any way or where there is a discounted rate goes through the business review committee," one of the sources told the Daily Report, noting that the DOMA engagement was both controversial and had a discounted rate.
The Journal goes on to quote a statement given to the Daily Report by King & Spalding partner J. Sedwick Sollers:
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 Journal's Nathan Koppel characterizes this statement as "back[ing] Clement's earlier comments that he believed he had the all-clear before taking the assignment," the statement only appears to acknowledge that a previously established vetting process for the firm -- of going through the ethics committee before taking on the representation -- was not followed in this case.
Richard Socarides, president of Equality Matters, tells Metro Weekly that he views the new information far differently that the Journal's Koppel, writing, "What this new insider account suggests is that Clement did not follow the rules of his own firm, he was at least partly to blame for taking the case before the firm gave its approval, and now, if there are legal ethics questions, they are at least in some way his own fault. None of which should be earning him praise from the legal community."
Clement and his new firm, Bancroft PLLC, have now taken on the BLAG's DOMA defense cases under a similar contract.