April 26, 2011

Why King & Spalding backed out of the DOMA case.

TPM reports:
Sources with knowledge of the backlash confirm that one of King & Spalding's top clients, Coca Cola, also based in Atlanta, directly intervened to press the firm to extricate itself from the case....

Other King & Spalding clients likewise conveyed to the firm that its decision to take the DOMA case could cause them problems, both internally and with customers...

King & Spalding also faced escalating protests from gay rights groups. The LGBT community in Atlanta has significant political influence, and the firm quickly became a target for major gay rights organizations including the Human Rights Campaign and the group Georgia Equality -- the largest gay rights advocate in the state. The groups planned an aggressive ad campaign, direct communication with the firm's clients, and a diminution of its Corporate Equality Index ranking -- the metric HRC uses to track corporate support for gay rights....

Complicating matters for King & Spalding, the firm's contract with the House of Representatives contained a curious provision that seemingly barred firm employees -- even those not involved with the case -- from advocating for gay equality in their private capacities outside the firm, so long as the firm was defending DOMA. Employees, the contract stated, "will not engage in lobbying or advocacy for or against any legislation [to] alter or amend in any way the Defense of Marriage Act."

According to the National Law Journal, "Gay-rights lawyers interpret that to be a gag order for firm employees." That includes one employee, Atlanta associate Brian Basinger, who is president of the Stonewall Bar Association of Georgia, a group that pushes for gay rights.

89 comments:

Chip Ahoy said...

Anything at all to subvert the system, and everything. Thank you for your playbook. Your tactics are now assimilated and all your bases are belong to us.

traditionalguy said...

That post is a word for word quote from yesterday's AJC article. Yes, Coca-Cola is an international operation that does not want gay protest agendas making competing with the local version of Pepsi any harder than it is now. Coke is right. Whether gay men and gay women get the benefits of a marriage is not our government's business, and has little significance apart from a political wedge issue.

Beth said...

"a curious provision that seemingly barred firm employees -- even those not involved with the case -- from advocating for gay equality in their private capacities outside the firm, so long as the firm was defending DOMA."

That complicates things.

gerry said...

Fascism has many faces.

Titus said...

That curious provision is just weird but then so are gays.

Scott M said...

Fascism has many faces.

Do they all have cute little mustaches? Or do those not gifted with such all have last names like Sanger?

rocketeer67 said...

I have a question:

Why would anyone want to be represented by a law firm that either doesn't read or can't understand all provisions of a contract prior to signing it?

Seems to me, King & Spalding was exposed as cowardly yesterday, and exposed as shitty today.

Mary Beth said...

One would think that the lawyers would have read the contract before agreeing to it and would have contemplated the provision barring advocacy.

Trooper York said...

They are within their rights to do this of course.

I just wish they would feel the same way about defending the scumbag terrorists who want to kill us all.

If DOMA is so evil that it doesn't merit a defense what the fuck is Khalid Sheikh Mohammed?

That is why lawyers are worthless sacks of shit.

The only thing worse than a journalist is a lawyer.

ScottD said...
This comment has been removed by the author.
vbspurs said...

In the TPM comments section, one of their number suggests we conservatives will issue a boycott against Coca-Cola, because of this situation.

As if, but let's humour them.

So let me say here and now that I will NOT be boycotting Coca-Cola. Pepsi tastes like medicine. Ick.

TWM said...

Hell, I'm just amazed we finally found some lawyers who were honest enough to tell us how they really feel.

El Presidente said...
This comment has been removed by the author.
tim maguire said...

rocketeer67 said: Seems to me, King & Spalding was exposed as cowardly yesterday, and exposed as shitty today.

What more need be said?

george said...

Trooper York is correct in every regard. We have found out that standing against gay marriage (which I am for) is worse in the eyes of Coke and this half-assed law firm than the actions of a bunch of 7th century death cult members who want to destroy our entire civilization and commit genocide against gays in the process.

This is why lawyers are almost universally held in such low regard across every continent and through every time period of history. Not only do they as a class have lower morals than almost any other profession... the morals they do claim to have aren't even applied in a rational manner.

Patrick said...

K & S makes its money from Coca Cola, not controversial cases. It will be unaffected by its poor, gutless behavior.

Quayle said...

Hold the presses! You mean an evil, profit-mongering corporation was behind this decision?

How are the liberals in Madison able to contain their rage?

From now on: King and Spalding - Corporate Sellouts!

edutcher said...

OK, so what's the difference between the tactics of the gay raiders and Da Boys from Da South Side o' Chicago?

"Nice law firm ya got dere. Hate to see sumpin' bad happen to it".

jimbino said...

Trooper York, like most Amerikans, it seems, does not get the simple idea that nobody at Guantanamo or elsewhere can be condemned as a terrorist until he has been determined to be such by due process of law.

So, perforce, anyone is justified in treating such a person as a freedom fighter and, in particular, in insisting on due process of law in his case.

Peter Reilly said...

The thing that I find ironic about this is that the current situation provides an advantageous tax situation for same sex couples since they have a reasonable basis to file as married if that is better a result, but don't have to if it is worse. Combine that with the fact that there is a good conservative argument for repealing Section 3 of DOMA - states rights and Congress is really shooting itself in the foot.

http://riles52.blogspot.com/2011/03/congress-provides-subsidy-to-gay.html

Brent said...

Seriously - you heard it here first - I know a McDonald's Franchiser who is trying to get out of the Coke Contract because of this. Coca Cola should shut the fuck up about social shit and sell it's damn drinks.

Had my last Coca Cola product today.

Scott M said...

Coca Cola should shut the fuck up about social shit and sell it's damn drinks.

HOWARD JOHNSON IS RIGHT!!!

Had my last Coca Cola product today.

Just drank my last one.

kurt mueller said...

"The firm's contract with the House of Representatives contained a curious provision that seemingly barred firm employees -- even those not involved with the case -- from advocating for gay equality in their private capacities outside the firm."

Nothing curious about this at all. When you are a lawyer at a big firm, you have a duty of loyalty to all of the firm's clients whether or not you directly represent them. To advocate directly against the client's interests would be a conflict of interest.

Thorley Winston said...

Complicating matters for King & Spalding, the firm's contract with the House of Representatives contained a curious provision that seemingly barred firm employees -- even those not involved with the case -- from advocating for gay equality in their private capacities outside the firm, so long as the firm was defending DOMA. Employees, the contract stated, "will not engage in lobbying or advocacy for or against any legislation [to] alter or amend in any way the Defense of Marriage Act."



Sounds like the client asked for and the law firm agreed to include a provision in the contract that the client would follow their responsibilities in MRPC 1.7 and not undertake any work that would conflict with their representation of the client on this matter.

Brennan said...

King & Spaulding joins the Coke Sucking caucus.

Chuck66 said...

So the left is right. Large corporations really do run this country.

Our gov't passed a law that says marriage will remain as it is. But Coca Cola Corporation wants to change the law without a vote.

Aridog said...

jimbino said...

Trooper York, like most Amerikans, it seems, does not get the simple idea ... yada yada ...

Say hey, Jimbino, how good of you to point out the dim wittiness of us "Amerikans" ... just love your cliche' use of that spelling , too. It's always good when we get hectored by our betters.

Have a nice day.

MadisonMan said...

If you're not drinking Coca Cola products anymore, can I suggest the healthy alternative? Skim milk, or skim chocolate milk.

Dairy farmers will thank you.

TWM said...

"Trooper York, like most Amerikans, it seems, does not get the simple idea that nobody at Guantanamo or elsewhere can be condemned as a terrorist until he has been determined to be such by due process of law."

That's your idea. Not the law.

Scott M said...

Dairy farmers will thank you.

We consume copious amounts of dairy at my house.

Sofa King said...

Whether gay men and gay women get the benefits of a marriage is not our government's business, and has little significance apart from a political wedge issue.

But the only benefits they seem to care strongly about are the ones dispensed by the government, which would seem to make it the government's business.

I really hate this issue.

On the one hand, I sympathize with gay couples who are legally excluded from legal marriage for arbitrary and silly reasons, much as I sympathize with anybody who is disadvantaged by and arbitrary and silly law. I'd rather the law were changed to be more inclusive, or, better yet, to get the state out of the matter entirely.

On the other hand, I strongly DISAGREE with their contention that their being disadvantaged by a silly law is a violation of the Constitution. It isn't, and trying to make it so shreds the tatters of our rule of law.

But "right on the outcome, wrong on the process" is a difficult fence to straddle.

MayBee said...

How are the liberals in Madison able to contain their rage?

Protest against the Coke Brothers!!*


* They already have been, just with a different spelling.

Trooper York said...

Trooper York like most real Americans realizes that the only thing terrorist scum deserve is two behind the ear.

peter hoh said...

Is that "curious provision" standard for appellate work?

Pogo said...

Goodbye, Coke products.

I hardly knew ye.

Freeman Hunt said...

Give up delicious, ice-cold cans of Coca-Cola?

I will have to think long and hard about how opposed I am to a beverage company leaning on their lawyers in response to threats from advocacy groups.

I don't like this trend of advocacy groups threatening everyone, even people not directly related to their targets. But how do you boycott advocacy groups?

"a curious provision that seemingly barred firm employees -- even those not involved with the case -- from advocating for gay equality in their private capacities outside the firm, so long as the firm was defending DOMA."

And yes, that is just strange. Why did King & Spalding ever agree to that? Their employees would have a right to be upset about it.

Pogo said...

I am opposed to advocacy boycotts, but that's what Coke was doing to K&S after all.

I just don't want to give them any more of the little money I gave them.

It's in fact the only voice I have left.
Dollars are votes.
I vote no.

bgates said...

Coca-Cola supports civilian trials for Gitmo detainees.

I can't imagine King & Spalding would back out of those representations if they merely got to trial. They're trying to spring those guys.

Given the choice between a world in which gay Americans are unable to marry each other and a world in which thousands of more Americans die horribly in firestorms and collapsing skyscrapers, King & Spalding and Coca-Cola chose the latter, and are working enthusiastically to ensure the deaths of as many Americans as possible.

Trooper York said...

And if we ever have another serious incident such as a dirty bomb, then all the terrorist enablers and sympathizers and fellow travelers will get the same.

Trooper York said...

Starting with the lawyers who defend these scum.

Trooper York said...

And the journalists who make excuses for them.

MayBee said...

and are working enthusiastically to ensure the deaths of as many Americans as possible.

Considering Coke is paying King & Spalding and the GITMO detainees are not, you could say Coke is financing the deaths of Americans.

edutcher said...

jimbino said...

Trooper York, like most Amerikans, it seems, does not get the simple idea that nobody at Guantanamo or elsewhere can be condemned as a terrorist until he has been determined to be such by due process of law.

So, perforce, anyone is justified in treating such a person as a freedom fighter


Amerika, as in Amerikkka?

Cute.

This is the same justification the Soviets cooked up for the VC, Che Guevara, and assorted other cutthroats of the 20th Century.

Trooper York said...

Trooper York like most real Americans realizes that the only thing terrorist scum deserve is two behind the ear.

One will be sufficient, Colonel Thursday, but I appreciate the sentiment.

Oligonicella said...

Trooper York --
"The only thing worse than a journalist is a lawyer."

So which is worse, a lawyer/journalist or a journalist/lawyer?

Trooper York said...

And the politicians who put political correctness before the safety of our people.

bgates said...

Coca-Cola is an international operation that does not want gay protest agendas making competing with the local version of Pepsi any harder than it is now

Imagine how much trouble Coke would have in the Arab world if word got out they didn't follow the most extremist gay political agenda in the United States.

Trooper York said...

There is nothing worse than a lawyer.

Trooper York said...

You ever notice that in science fiction where mankind has evolved to a higher plane and a utopian society that seems like paradise there is one thing you never see?

Lawyers.

peter hoh said...

Sullivan declares the effort to get King & Spalding to drop the case "despicable."

Ut said...

"So let me say here and now that I will NOT be boycotting Coca-Cola."

We don't need to boycott Coca-Cola ... we need to ban their products which are causing obesity the world over.

Coca-Cola is dangerous. And if the federal government is going to require that I pay for the health care of fat people, then we should outlaw these fat-causing products that Coka-Cola produces.

It's not about getting them back for their anti-family stance. It's not about political payback being a motherfucker.

It's about health care. See, Coca-Cola doesn't care about the health care of its customers.

MayBee said...

If the King & Spalding lawyers tell the Gitmo detainees their defense is being funded by supporters of gay marriage, will that be detainee abuse?

Big Mike said...

Complicating matters for King & Spalding, the firm's contract with the House of Representatives contained a curious provision that seemingly barred firm employees -- even those not involved with the case -- from advocating for gay equality in their private capacities outside the firm ...

You tell me, Professor, in your opinion is that provision even enforceable in court of law? Clearly the firm should have thought through the implications of that provision before signing. That's what they get for acting as their own lawyers, I guess.

Trooper York said...

Personally I am boycotting Coketown until his posts get funnier. Just sayn’

The Drill SGT said...

WRT the advocacy clause, I'd like to see it before making a judgement.

does it preclude outside activities which would normally be covered by the 1st amend?

does it cover staff or just the firm?

"lobbying" is not a general term in the legal circles. It has a specfic definition.

One would expect that there is some ambiguity in the clause, since it apparently is open to interpretation.

perhaps they need to hire a better inside counsel and beef up their contracts practice.

One that topic, isn't it strange to be using the clients contrack for a representation engagement rather than the firm's own standard one?

doesn't that set off alarms up front for non-standard clauses?

Carol_Herman said...

Coca-Cola better start ducking.

Pretty easy NOT to buy their crappy cola. Or other products they sell.

One thing Coca-Cola did NOT expect was the news of this becoming so scandalous.

Jenner said...

People need to think about this as the forest, not the trees: so one client can bully the lawyer to drop another client? How does that help our "innocent until proven guilty" philosophy? There is no legal conflict of interest in this information.

The clause says employees can't advocate either way - cannot advocate for or against the legislation. Whether the firm can ask its employees not to comment on specific issues is the question, not what the specifics issues are.

This is bad precedent. The lawyer who resigned over this is the honorable one, and it's not because of the side he's on.

peter hoh said...

Drill Sgt, here's an analysis of the provision that suggests that the provision covered any K&S employee, even non-lawyers not involved in the case.

The analysis suggests that the provision probably violates laws in some states in which K&S practices.

edutcher said...

vbspurs said...

So let me say here and now that I will NOT be boycotting Coca-Cola. Pepsi tastes like medicine. Ick.

Not surprising, that's what they started out being.

Almost Ali said...

It looks like King & Spalding get to have their cake and eat it too.

It's the perfect accommodation - they leave their best man (Clement) in, while taking themselves out. The best [billing] of both worlds.

MayBee said...

Why couldn't K&S just ask to renegotiate the contract?

Kevin said...

Coke - representing terrorists is OK, but not traditional marriage!

Have a Coke today!

Coke - Jihadis Love It!

The Drill SGT said...

@ peter hoh said...
1356

Peter, while I agree with you, based on what I read there, I'd like to see the actual section and frankly all of section 4, not just somebody who extracts a chunk of 4(g) out and then provides quotes from the Lamda guys and no counter analysis.

I'd like the whole story.

peter hoh said...

Drill Sgt, try this link for a pdf:

http://www.politico.com/static/PPM176_110419_legal_contract.html

G Joubert said...

It's just somebody's opinion that the contract provision might violate some states' law, and it appears to be the opinion of somebody with a dog in the fight on the anti-DOMA side. Not persuading me yet.

Objectively, I don't see anything wrong about a client expecting or even demanding that its lawyer, the lawyer's law firm, and employees of the law firm, not advocate against the client's interest. In fact, I might say it's the way it ought to be.

peter hoh said...

G Joubert, that's why I'm asking those who might be familiar with this sort of thing if this sort of provision (and the breadth of it) is normal.

traditionalguy said...

K&S is an old time player in the real world of big money and power. Jimmy Carter had his Griffin Bell from K&S. The Woodruff/Coke industrial power influence was and is one of the 7 or 8 such Corporate mega lions in the world. One does not hire K&S, one pays his taxes to K&S to be included within the walls of those under protection of the political/monetary power that exists in the USA and the world. K&S doesn't have to be the sharpest attorneys in town. They only have to support the right Atlanta pillars of the establishment and practice in front of Judges who are usually their former partners.

Quayle said...

G Joubert, that's why I'm asking those who might be familiar with this sort of thing if this sort of provision (and the breadth of it) is normal.

Here is an excerpt from our engagement letter:

".... For example, our conflicts process will not necessarily reveal and we will not check to determine whether other clients may be your competitors or may take positions on the subject matter of certain issues that may be adverse to or inconsistent with positions or legal arguments that you may favor respecting that subject matter."

I don't think this kind of language in engagement letters is unusual.

traditionalguy said...

And let me add that K&S is good to its friends. They do not normally throw clients under the bus. In this case they seriously misjudged thinking that paid representation the GOP agenda in the House of Representatives was sufficient cover like the helping of "poor and defenseless terrorists pro bono". Anyway, this issue is over. The Defense of Marriage Act has no friends in high places anymore.

Michael said...

Traditional Guy: I would agree with you relative to K&S on the smaller Atlanta stage, but they are also compelled to attract clients on the world stage and from people who occupy horses every bit as high as K&S fancies themselves to ride. I wonder if in the present instant case they may have gone a high horse too high. There are plenty of very noble and good people who find the abandonment of a client to be contrary to the very concept of justice, social or legal. It will interesting to watch. I know I won't hire them and prefer the Smith Gambrells and Huntons when looking for a southern law firm.

chickelit said...

The Defense of Marriage Act has no friends in high places anymore.

That depends on what your definition of "high places" is.

Paul said...

dd

Carol_Herman said...

Gee, I wonder if Coca-Cola's stock, today, is on the rise? Or not.

How do the international companies know when they're getting bad publicity?

peter hoh said...

Quayle, if I understand your excerpt correctly, that's from the letter of understanding you give clients, telling them that you work with other clients who may be in conflict with your client's positions.

The provision in the House contract with K&S does not seem to be saying the same sort of thing.

But IANAL, so I may have misread your excerpt.

traditionalguy said...

Michael...And what size stage does the world play on that should startle Atlantans? Get serious. Who was K&S's client who deserved the firm's loyalty here, a guy named Marriage? The same lawyer represents Mr. Marriage today as represented him yesterday. The younger generation sees gay issues totally different from the way it was seen 8 years ago. That happens a lot lately. Sodomy was still a crime in Georgia until 8 years ago.

Bruce Hayden said...

I think that in the end, Coke is going to suffer more than it gains. DOMA is more popular than defending terrorists, pro bono, by far.

K&S, not as much. Their biggest clients know that they can get them to throw smaller clients under the bus, upon demand. And those big clients, like Coke, are where the firm profits are.

Bruce Hayden said...

Imagine how much trouble Coke would have in the Arab world if word got out they didn't follow the most extremist gay political agenda in the United States.

Keep in mind though that those terrorists that K&S defends, pro bono, tend to be almost exclusively Muslim, and some are Arabs (though, I suspect, most are not).

mariner said...

How are the liberals in Madison able to contain their rage?

From now on: King and Spalding - Corporate Sellouts!

You're kidding, right?

The firm sold out to the gay-rights mafia. Somehow I don't think that will hurt them in Madison.

bgates said...

Coke - Jihadis Love It!

"The Americans love Pepsi Cola but we love death. And Coke products."

"Because Coke is helping us to murder people."

chickelit said...

"Coke Adds Strife!"

Revenant said...

If DOMA is so evil that it doesn't merit a defense what the fuck is Khalid Sheikh Mohammed?

A human being.

ScottD said...
This comment has been removed by the author.
chickelit said...

vbspurs said...
So let me say here and now that I will NOT be boycotting Coca-Cola. Pepsi tastes like medicine. Ick.

There is of course a third way, but you may be too young to remember: this

Revenant said...

Does this mean they will stop serving Coca-Cola at Chick-fil-A?

Oh noes!

David said...

Even King & Spaulding would not be dumb enough to sign a contract that purports to limit what their employees advocate privately. Would they?

As to the Coke relationship, it has already been poisoned by this episode. Companies like Coke want their lawyers to understand what their needs are, and K&S must have just blown by this. Certainly they did not consult. And Coke is getting bad publicity by being revealed as the source of the wimpout.

Big firms turn down representations all the time out of concern that they might be embarrassing or hurtful to important clients. This one happens to involve some hot button issues, and a high profile partner resignation, but it's not all that unusual.

Here's the scorecard for King & Spaulding:

1. Lost a valuable partner.
2. Annoyed lots of firm lawyers by wimping out of the representation after taking it.
3. Annoys some conservatives, and other free speech advocates by being intimidated.
4. Pisses off their most important client by taking a job K&S should have known would be a problem for them.
5. Loses face with most important client--and probably other clients--by allowing this to get out of hand, and then caving.
6. Gets no love from the gay groups, who would never love them noway nohow.
7. Annoys white Christian conservatives.
8. Probably annoys some influential blacks in Atlanta, where traditional social values are still strong in the black community and particularly the churches.
9. Loses several thousand billable hours to office gossip time.
10. Exposes other rifts among partners that were not festering too openly.
11. Makes its lawyers question other firm management decisions.
12. Becomes a laughingstock.

Nice job, King & Spaulding.

traditionalguy said...

Rev...You nailed it. The word is that chick-fil-A will now serve no coke products on Sundays to punish the gay lovers on North Avenue.

gerry said...

Heh.
Both sides of the spectrum come down against K&S.

Via Instapundit.

Stan said...

It means Chick Fil A will stop serving diet coke to me. I'm appalled that any corporation would lean on lawyers to stop representing anyone -- regardless of how unpopular.

I'd be pissed if Coke did it over a terrorist defense, a serial murderer, or this case.

Roy in Nipomo said...

Trooper:
And the politicians who put political correctness before the safety of our people.

Aren't most of them lawyers?

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