Most bar leaders and legal ethics experts leapt to Clement’s defense. Some applauded his courage, and invoked the well-worn example of John Adams risking his livelihood to defend British soldiers involved in the Boston Massacre. Other commentators, including Washington Post blogger Jennifer Rubin, condemned the firm for being willing to “fold like a cheap suitcase when their clients become unpopular.” Volokh Conspiracy blogger Jonathan Adler joined a chorus lambasting the “McCarthyite” tactics of gay-rights activists in pressuring firm lawyers and clients. The New York Times’ account quoted New York University School of Law professor Stephen Gillers’ prediction that the firm’s “timidity here will hurt weak clients, poor clients, and despised clients.”
With all due respect to Gillers, a friend whose views I frequently share, the Republican leadership is scarcely “weak” or “poor” and was hardly prejudiced by this decision. Clement will continue to represent them at Bancroft, his new law firm. And with due respect also for Clement, his conduct was scarcely analogous to that of Adams, or to others whom pundits invoked, such as lawyers providing pro bono representation to Guantánamo Bay, Cuba, detainees. Clement is being paid $520 an hour, up to $500,000 for his services, and his livelihood is hardly at risk for representing conservative Republicans. Plenty more paying business is available from those circles. Moreover, what many of Clement’s defenders overlooked was a clause that he accepted in the retainer agreement. It prevented any member of the firm from “lobbying or advocacy for or against any legislation” that would “alter or amend” DOMA. For any lawyer to accept a clause that would muzzle his colleagues on such a fundamental issue is hardly consistent with the tradition of Adams or the highest principles of the profession.
