Dear Mr. Hays:
There was a time in the Twin Cities when openly gay men would tell me that they could not be hired by major law firms. Apparently, we have moved 180 degrees on the question of civil rights for gays. But even as we follow a course that isn’t popular with many segments of society, your law firm seems to have lost its direction.
A few months ago, Paul Clement, a well-known partner at your firm and a former U.S. solicitor general, was hired by the U.S. House of Representatives to argue in the Supreme Court the defense of the so-called Defense of Marriage Act.
Officials from the Lambda Legal Defense Fund, the Human Rights Campaign Fund, and a number of organizations that support gay rights indicated that King & Spalding’s continued representation of this matter would deprive it of work from some of its major clients. (Coca-Cola was one such reported client.) In addition, these organizations intimated that were your firm to go forward in this case, the firm would find it very difficult to recruit high-quality law grads.
In late April, King & Spalding announced that it had decided to withdraw from this case. Clement soon resigned.
Perhaps, then, your firm’s hiring Clement was an error. So to provide additional guidance to King & Spalding about whom to hire in the future, and because law firms are steeped in the culture of precedent, let me suggest some examples of the kind of lawyers your firm should avoid employing in the future:
• Andrew Hamilton undertook to represent Peter Zenger in 1733 against the colonial government that had arrested and imprisoned him on the charge of seditious libel. Zenger had published a number of articles critical of the colonial governor of New York. Zenger’s position was unpopular (certainly to the authorities), and Hamilton’s future was much in doubt. Nevertheless, Hamilton argued Zenger’s defense to a jury, which acquitted him.
• King & Spalding also probably shouldn’t hire any attorneys named Adams. John Adams represented Captain Thomas Preston, the British Army’s officer of the day on March 5, 1770, in what has become known as the Boston Massacre. Preston and his men fired on unarmed civilians, killing five Bostonians. Defending Preston was, to put it mildly, unpopular. But Adams did not desert his client and won an acquittal.
• Other Adamses would not fit in at King & Spalding either. Late in life, John Quincy Adams volunteered to defend a group of Africans who had been abducted by Portuguese slave traders and shipped to Cuba. The Africans seized the ship, killed the captain and several of the crew, and tried to set sail back to Africa. Their ship, the Amistad, was seized by a U.S. warship off the coast of Long Island, New York. Adams successfully argued the defendants’ case in the U.S. Supreme Court in February 1841.
• Joseph N. Welch was the lead counsel for the U.S. Army during the so-called Army-McCarthy hearings in 1954. Senator Joseph McCarthy claimed that there were Communists everywhere in the government. Welch defended the Army and, as it turned out, one of his junior attorneys, Fred Fisher, whom McCarthy accused during the hearings of being a Communist sympathizer. After McCarthy launched yet another attack on his young associate, Welch posed his famous question: “Have you no sense of decency, sir?” Historians have often noted that the Army-McCarthy hearings sounded the death knell for McCarthyism. And to those law firms who abandon their clients because they have become unpopular, I would simply ask: Have you no decency?
• Atticus Finch is the fictional lawyer of Harper Lee’s novel, To Kill a Mockingbird. Most lawyers at King & Spalding and most other firms have read the Pulitzer Prize–winning book and probably have seen the famous movie. Atticus Finch would never have dropped his representation of a client when the matter became wildly unpopular, so he wouldn’t fit in at today’s King & Spalding. Late in the book, when Atticus Finch walks by, someone in the gallery urges everyone to stand up because a lawyer is walking by. We won’t have to stand up when a King & Spalding attorney walks by.
My intention isn’t to criticize King & Spaulding’s attitudes towards gay rights. My point is this: To abandon a client in the middle of representation because his cause has become unpopular is a dereliction of duty. Clients should think twice before engaging the services of such a law firm, because they already know the kind of lawyers they will not be hiring. If you look at the lawyers mentioned in this column, you will note that all of them have been the subjects of favorable documentaries or famous movies. There will be no movie about King & Spalding.
Vance K. Opperman