Paul Clement (left) and John Boehner (right)

They say that everyone is entitled to a lawyer. [FN1] But is everyone entitled to the services of former U.S. Solicitor General Paul Clement, one of our nation’s finest appellate advocates? At a discounted rate, no less?

As we mentioned in yesterday’s Non-Sequiturs, the U.S. House of Representatives has hired Paul Clement and Clement’s law firm, the venerable King & Spalding, to defend the Defense of Marriage Act. DOMA, which essentially bars recognition of same-sex marriages for purposes of federal law, has been struck down in part by various federal courts, and the Obama Administration has decided to stop defending the 1996 law in constitutional challenges.

So the House Republicans have stepped up to the plate to defend DOMA. And they’ve hired some high-powered counsel for the task, namely, Clement and King & Spalding.

The contract between the House and King & Spalding was made public today by the office of House Minority Leader Nancy Pelosi (after Speaker John Boehner declined to release it). The agreement contains some interesting tidbits, including the hourly rate the House will be paying, as well as a cap (although an adjustable one) on the fees to be paid to K&S.

Let’s take a look, shall we?

Over at Politico, Josh Gerstein discusses the highlights of the contract, as well as the reaction from a Pelosi spokesperson:

Leaders in the House have agreed to pay up to $520 an hour and up to $500,000 to a law firm retained to defend the constitutionality of the Defense of Marriage Act after President Barack Obama instructed the Justice Department not to defend a key part of the law….

A spokesman for House Minority Leader Nancy Pelosi (D-Calif.), who opposed the House’s move to step into about a dozen pending suits over DOMA, issued a statement Tuesday portraying the hiring of Clement as a waste.

“The hypocrisy of this legal boondoggle is mind-blowing. Speaker Boehner is spending half a million dollars of taxpayer money to defend discrimination. If Republicans were really interested in cutting spending, this should be at the top of the list,” the spokesman, Drew Hammill, said.

(That’s a cute debater’s point, but $500,000 is really nothing in the context of the budget. It’s like when Republicans talk about going after NPR or Planned Parenthood for fiscal rather than ideological reasons. There are legitimate reasons for objecting to government funding of these groups, but let’s not pretend that it’s about fiscal restraint.)

Here are more details about the contract, from The BLT:

The five-page contract sets out a “blended rate” of $520 per hour for the services of King & Spalding’s legal team, led by Clement (pictured above), a former U.S. solicitor general who heads the firm’s appellate practice. Others on the case include partners Daryl Joseffer and Jeffrey Bucholtz, and associate Nicholas Nelson, according to the contract and court papers filed late on Monday.

Clement and the House’s general counsel, Kerry Kircher, signed the agreement on April 14, and it runs until the litigation is over or until January 2013, unless they agree to an extension.

Now, five hundred bucks an hour sounds awfully nice, but it’s a definite discount from Paul Clement’s usual rate. Appellate and Supreme Court litigation might be a prestige-generating loss leader for many law firms, but rest assured that King & Spalding, which pays Clement a reported $5 million a year, does not normally bill him out at $500 an hour.

UPDATE (4/20/11): There’s an interesting discussion of the $520 blended rate in the comments. Because this is a blended rate, it shouldn’t be viewed as applying just to Clement; it’s the rate that will apply to all attorneys who work on this matter, including some lawyers who normally bill out at under $520 an hour. But, for the reasons I set forth in the comments, it’s still fairly clear that this rate represents some sort of discount from K&S’s normal rates.

In addition, the contract explicitly provides for a discount as to support staff charges, which will be billed to the House at 75 percent of King & Spalding’s usual and customary rate. (You can check out the full contract over here.)

We’ve heard from many readers about the King & Spalding engagement, most of them expressing displeasure with K&S taking on this matter. One tipster wondered how this would affect the firm’s LGBT recruitment efforts and sexual-orientation diversity (already minuscule, at under 1 percent). A second source said:

You guys should really dig into King & Spalding’s representation of the House in defending the Defense of Marriage Act. I would think the LGBT associates there, the diversity committee, indeed anybody who values equal rights, should be throwing a real fit over this.

You can read the engagement letter here. See paragraph 4(g), which bars all K&S attorneys from any advocacy to alter or amend DOMA. So ALL K&S associates can’t even participate in protests, contact their Representative or Senator, work with civil rights organizations, donate money, etc., in support of recently-introduced legislation to repeal DOMA.

K&S is the new firm for bigotry. I hope it gets labeled as such.

Is this tipster’s reading of the contract correct? Read the contract here, then discuss in the comments.

Meanwhile, some observers who are opposed to King & Spalding’s involvement in DOMA defense have created an online petition, entitled “Tell Law Firm King & Spalding: Don’t Defend Bigotry Against LGBT People.” Here’s an excerpt from the petition description:

King & Spalding is a major international law firm, with offices in more than a dozen cities around the globe. They proudly claim on their website that diversity is a major priority at the firm, and they single out LGBT issues on their website, saying that they value the contributions of LGBT employees and LGBT clients.

Yet if King & Spalding is so LGBT-friendly, why is a senior partner at the law firm working with U.S. House Speaker Rep. John Boehner to defend one of the most anti-LGBT laws in the entire country?

…. History doesn’t look kindly on law firms that defend bigoted laws. Does King & Spalding want to go down in history as the law firm that tried to keep LGBT people second class citizens in this country?

(Well, John W. Davis — the “Davis” in Davis Polk & Wardwell — argued on the losing side of “separate but equal,” and DPW seems to be doing okay today.)

Although I’m (obviously) in favor of marriage equality as a policy matter — i.e., I’d vote in favor of it at the ballot box — I try to keep an open mind about it as a constitutional matter. And I try to keep an open mind about issues such as the constitutionality of DOMA.

So rather than opining myself, I’ll toss some questions out to you, Above the Law readers:

  • Does King & Spalding deserve flak for taking up DOMA defense?
  • If so, how does this differ from Biglaw firms defending, say, Guantanamo Bay detainees who want to bring down the United States? (Even if one might disagree with their substantive goals, the detainees deserve legal representation, right?)
  • Isn’t it desirable to have the constitutionality of DOMA, a law duly enacted by Congress and signed by President Clinton, ruled upon after the best and most vigorous advocacy, on both sides?

Thoughts? I look forward to being called self-loathing your perspectives, in the comments.

[FN1] Of course, the “everyone is entitled to a lawyer” rule applies only in certain cases. See Gideon v. Wainwright and its progeny.

P.S. In other King & Spalding news, here’s a request we recently received:

I was wondering if Above the Law has heard anything regarding salary or bonus info [at King & Spalding]. Last year, Above the Law had a post around March with salary and bonus info from K&S. Most people took very little bonus and a salary freeze.

Given all the recent bonus info, I was wondering if ATL had any new info from K&S. I have not seen anything from the Atlanta market and K&S is usually one of the market leaders there. Thanks.

We haven’t really heard anything. About a month ago, one K&S source told us that there was no word yet on spring or even regular bonuses. But that was a month ago, and a lot can change in a month.

If you have any info you’d like to share with us about King & Spalding compensation, please email us or text us (646-820-8477).

House sets $500K, $520-an-hour contract for DOMA defense [Politico]
Contract for Legal Services: Kerry Kircher and King & Spalding [Politico]
Gay Marriage Cases Could Cost House $500K or More [The BLT: The Blog of Legal Times]
How to Be a $5-Million Man [Capital Comment / Washingtonian]
Tell Law Firm King & Spalding: Don’t Defend Bigotry Against LGBT People [Change.org]

Earlier: Non-Sequiturs: 04.18.11


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