The process King & Spalding uses to screen potential clients is usually rigorous and time-consuming, but it's not necessarily a flawless system, according to interviews with lawyers who have worked there.
The Atlanta-based firm's vetting process is under scrutiny because of its decision this week, amid pressure from gay-rights advocates, to drop the U.S. House Republican leadership as a client in same-sex marriage lawsuits.
Robert Hays Jr., the firm’s chairman, said in announcing the decision that the firm’s review process had been “inadequate,” although the lawyer who had been handling the cases, former U.S. solicitor general Paul Clement, disputed that. Clement said he thought he had the firm’s backing, and he gave Hays his resignation in protest.
The firm won’t say how Clement's engagement was vetted. Traditionally, though, King & Spalding uses an internal panel known as the Business Review Committee to vet all potential new clients, three former partners said. Many other large law firms use similar committees, but not all. Others, for example, run potential clients through an in-house general counsel’s office.
Richard Cirillo, a New York-based partner, is the chairman of the Business Review Committee, according to his firm profile. He held a similar position at a prior firm, Rogers & Wells, which is now part of Clifford Chance. He was also the one tasked with filing a request in federal court on Monday asking that King & Spalding be allowed to withdraw from a lawsuit that challenges the 1996 Defense of Marriage Act.
The former partners, who spoke on condition that they not be named, said the committee looks for standard conflicts of interest — for example, whether the potential client would be an adversary of an existing client — but also less obvious business sensitivities. For example, the firm can be very strict about representing only one side of an industry; its construction practice generally represents construction companies and not contractors.
“It was very thorough, and it would take a couple days,” one former partner said of the process. The same partner expressed surprise that King & Spalding initially took the same-sex marriage litigation, because the firm’s leadership has a reputation for supporting gay rights, including by offering partnership benefits. “I don’t know how this got through,” the partner said.
Another former partner said the review would typically have involved examining the potential impact on King & Spalding’s lobbying practice. The contract Clement signed with the House General Counsel’s Office on April 14 limited any lobbying that other firm employees could do on same-sex marriage, and a House ethics rule has been interpreted in other cases to require limitations that are stricter.
This partner said it would be understandable if the review committee or others did not anticipate the scale of the fallout among gay-rights groups. After King & Spalding’s work for the House became public April 18, the Washington-based Human Rights Campaign announced an effort to “educate” the firm’s clients and potential recruits.
“It’s a human process, and you can definitely see how they might have missed all the repercussions of it,” the partner said. Still, the partner added, it would be “shocking” if Clement didn’t at least discuss those considerations with Hays or others in the firm’s leadership.
Other lawyers outside the firm have wondered whether King & Spalding’s leadership was aware of a provision in the House contract limiting the “advocacy” of firm employees on the marriage issue. Jon Davidson, legal director for the gay-rights group Lambda Legal, said that provision, “if enforced, would have violated employees’ rights in California and New York, at least.”
Hays’ statement on Monday said the firm’s process for taking on the marriage litigation was “inadequate” and he took responsibility for “any mistakes that occurred.” He did not provide details and he has declined interview requests.
Clement’s resignation letter took issue with the suggestion of an inadequate review. “I would have never undertaken this matter unless I believed I had the full backing of the firm,” Clement wrote. “I recognized from the outset that this statute implicates very sensitive issues that prompt strong views on both sides.”
Clement is moving to Washington boutique Bancroft to continue the marriage litigation. He joined King & Spalding’s Washington office in 2008 soon after serving as solicitor general, though he previously headed the firm’s appellate practice. Clement has not responded to interview requests.
Hays specializes in mass tort defense, having served as lead counsel to General Motors Corp., Merck & Co. and others. He’s based in Atlanta and has been firm chairman since January 2006.