On Thursday, Utah announced that it hired attorney Gene Schaerr to lead its effort to defend marriage discrimination in a case that is likely to wind up before the Supreme Court. Utah’s announcement was mildly surprising because Schaerr is not Paul Clement, the de facto Solicitor General of the Republican Party who defended the unconstitutional Defense of Marriage Act before the justices.
Schaerr and Clement do share another thing in common, however, beyond their representation of high-profile anti-gay clients. Both men left their jobs at large law firms shortly after taking on an anti-gay case.
Clement left behind a partnership at the firm of King and Spalding after gay rights groups and Coca Cola, one of King and Spalding’s top clients, pressured the firm to drop its defense of the anti-gay DOMA law. He went on to argue the DOMA cases at a small law firm founded by a former Bush Administration official.
Although the circumstances of Schaerr’s decision to leave his law firm are a bid more opaque — the firm, Winston & Strawn, released a vague statement saying that “Gene Schaerr, our former partner and formerly one of the co-leaders of our appellate and critical motions practice, has decided to resign from the firm in order to take a position as Special Assistant Attorney General for the State of Utah” — it’s hard to miss the similarities between this resignation and Clement’s. Simply put, lawyers do not typically resign from law firms because they take on a new client — taking on new paying clients is exactly what makes a law firm’s partners valuable to the firm.
Beyond the risk that a major client may balk at the firm’s activities, there’s another obvious reason why large law firms may not want to take on major anti-gay cases. Firms compete for top graduates and recent law clerks in their hiring process, and most new lawyers come from an age group that overwhelmingly supports marriage equality. Eighty-one percent of people aged 18-29 support marriage equality, according to a Washington Post/ABC News poll. Given that the kind of work (and the kind of jobs) offered by one major law firm can typically be done just as well by dozens of of other large law firms, the fact that a firm is also engaged in anti-gay defense work can easily be enough to push clients and potential hires into another firm’s arms.
Indeed, both Winston & Strawn and King and Spalding profess to value diversity as, in King and Spalding’s words, “an integral part of our culture.” The firm Schaerr is leaving to become Utah’s top anti-gay counsel offers a generous domestic partner benefit to same-sex couples that effectively cancels out the negative federal tax treatment afforded to gay couples that are unable to marry.
Utah plans to pay Schaerr up to $200,000 just for the “10th Circuit phase of the proceedings,” meaning that he will receive even more money in the likely event that this case reaches the Supreme Court. Meanwhile, the state of Utah has an entire attorney general’s office filled with lawyers who are perfectly capable of writing an appellate brief and competently arguing their case before a court.
A common defense offered by lawyers who take on unpopular clients is that every party to litigation deserves competent counsel — and this is normally a very good argument. In this case, however, Utah already has plenty of lawyers, and the $200,000 it plans to pay Schaerr just for one stage of the litigation is money that will not be spent to provide representation to people truly in need of legal services. If Utah wanted to show its dedication to ensuring that all parties have excellent legal representation, they could take the money they plan to pay Schaerr to defend their anti-gay law and use it to fund public defenders and legal services for the poor instead.