Paul Clement

Less than a week after a law firm signed a contract to represent the U.S. House in defending DOMA in federal court, the law firm began to withdraw from the agreement.

King & Spalding, an international firm that boasts of its commitment to diversity and non-discrimination for LGBT attorneys, issued a statement Monday, saying it was filing the necessary motion to withdraw as counsel.

“Today the firm filed a motion to withdraw from its engagement to represent the Bipartisan Legal Advisory Group of the House of Representatives on the constitutional issues regarding Section III of the 1996 Defense of Marriage Act,” said the statement, attributed to firm chairman Robert D. Hays Jr. “Last week we worked diligently through the process required for withdrawal.

“In reviewing this assignment further,” said Hays, “I determined that the process used for vetting this engagement was inadequate. Ultimately, I am responsible for any mistakes that occurred and apologize for the challenges this may have created.”

Hays’ statement raised as many questions as it may have answered. Would the firm re-vet the assignment in a more adequate way? What was the mistake? What challenged did the mistake create?

But Les Zuke, director of communications for the firm, said he could not provide any information beyond the statement.

And the lead attorney identified by the contract signed April 14 between the firm and the House’s General Counsel—Paul Clement—resigned immediately from the firm, saying the firm’s withdrawal from the case was due to the “extremely unpopular” position the firm had agreed to defend.

Clement’s resignation letter, published by the Atlanta Journal-Constitution, suggests he made the decision to take the case and that he will still represent the House in the case.

“I would have never undertaken this matter unless I believed I had the full backing of the firm,” wrote Clement. “…But having undertaken the representation, I believe there is no honorable course for me but to complete it.”

Some speculate that King & Spalding may have dropped the case not because the House’s position is “extremely unpopular.” Though news of the original contract triggered an immediate outpouring of criticism from LGBT organizations and others, some say a “gag” clause in the contract may have been a key factor.

“I think there were a number of different factors” for why King & Spalding withdrew from the case, said Jon Davidson, legal director for Lambda Legal.

The contract stipulates that King & Spalding partners and employees working on the case would be barred from “any lobbying or advocacy for or against any legislation” in the House during the litigation. The contract further states that these partners and employees would also be barred from “any lobbying or advocacy” specific to DOMA in either the House or Senate. Partners and employees not working on the case would be barred from lobbying and advocacy for legislation pending before the House committee and any legislation concerning DOMA in the House or Senate.

Davidson it was “remarkable” the contract promised “people at the firm, in their private capacity, could not call their legislator.”

“I imagine a lot of people inside the firm were unhappy about that,” said Davidson.

Clement, a former Solicitor General, signed the contract letter of engagement on April 14. It provided for him, and two associate attorneys—also former colleagues in the George W. Bush administration—to work on the case for a reduced hourly fee of $520 per hour. (Unconfirmed reports suggested the standard fee was closer to $900.) The contract called for the firm to represent the Bipartisan Legal Advisory Group as a party or intervenor in various federal lawsuits challenging the Defense of Marriage Act (DOMA). The initial ceiling on attorneys fees was set at $500,000.

The Human Rights Campaign and other LGBT groups praised King & Spalding for pulling out of the contract.

“King & Spalding has rightly chosen to put principle above politics in dropping its involvement in the defense of this discriminatory and patently unconstitutional law,” said HRC President Joe Solmonese in a statement. “We are pleased to see the firm has decided to stand on the right side of history and remain true to its core values.”