DOMA gag rule at King & Spalding?

Posted on April 21st, 2011 by Katherine Franke

Paul Clement

Metro Weekly has the story, but this is outrageous.  Paul Clement, partner at King & Spalding, signed the firm up to represent the House of Representatives in defending DOMA, the agreement between the firm and the government contains a provision that prohibits all King & Spalding attorneys and non-attorney employees from any advocacy to “alter or amend” DOMA.  Here’s the exact language:

“partners and employees who do not perform services pursuant to this Agreement will not engage in lobbying or advocacy for or against any legislation … that would alter or amend in any way the Defense of Marriage Act and is pending before either the U.S. House of Representatives or the U.S. Senate or any committee of either body during the term of the Agreement.”

This contract provision if surely offensive, but it’s illegal in several states where the firm has offices.  New York law, for instance, states

Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of:

an individual’s political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property, if such activities are legal …

McKinney’s Labor Law § 201-d (2)(a)

Similarly, the California labor code states that: “[n]o employer shall make, adopt, or enforce any rule, regulation, or policy … [f]orbidding or preventing employees from engaging or participating in politics ….”

Of course King & Spalding can take on the representation of a public client on a matter of public concern, but this kind of firm-wide gag rule is quite another.   It’s illegal and it’s wrong.

FYI – King & Spalding’s website has a lovely page describing their robust commitment to diversity.  The gag rule probably violates firm policy as well:

At King & Spalding, we recognize that diversity is more than just a buzz word, it is an integral part of our culture. We believe that the diversity of our firm significantly enhances our ability to provide the highest quality legal services to our clients. We strive to create a collaborative environment that benefits from the sharing of experiences, ideas and unique qualities that each of our lawyers brings to the firm.

Of course, we recognize that diversity and inclusion are about more than numbers. Because diversity is one of the firm’s core values, it is supported by a standing committee that leads the firm’s diversity and inclusion efforts.

. . .

The Diversity Committee includes partners, counsel and associates from across the firm and the members represent differences in ethnicity, race, gender, lifestyles (?? is this a closet word for sexual orientation?), backgrounds and viewpoints.

. . .

Each partner in the firm has committed to spend a minimum of 15 hours working on diversity and inclusion efforts. In 2009, our partners devoted more than 2800 hours to diversity efforts. This is in addition to the time spent on associate professional development activities.

(emphasis mine)

Finally, on the firm’s “LGBT Diversity” page they describe how they “encourage and support their partners, counsel, and associates taking leadership roles in organizations serving the LGBT community:

Partner Sam Griffin has served as co-chair of Georgia’s Multi-Bar Leadership Council, and is a member of the board of directors for the Stonewall Bar Association of Georgia, the statewide group for LGBT legal professionals.

Associate Brian Basinger is President of the Stonewall Bar Association of Georgia. Mr. Basinger also has served on the board of directors for Georgia Equality, the statewide non-partisan LGBT advocacy organization.

The firm’s LGBT Affinity Group provides opportunities for partners, attorneys, and counsel throughout the firm to interact and collaborate on diversity efforts.

Are all these nice people going to have to resign from their community work in light of the contract Clement negotiated to defend DOMA?


  1. Preemption? I might be inclined to argue unconstitutional conditions instead.

  2. DOMA gag rule at King & Spalding?

  3. RT @GenderSexLaw: DOMA gag rule at King & Spalding?

  4. #DOMA gag rule at King & Spalding? / that's illegal in several states!

  5. RT @janewishon: #DOMA gag rule at King & Spalding? / that's illegal in several states!

  6. I’m not really familiar with US contract clauses, but the language of para f and g seem to me to be much broader than just forbidding advocacy for DOMA. f. says: …. any legislation (i) that is pending before the U.S. House of Representatives …., or (ii) that would alter or amend … g. says: … any legislation (i) that is pending before the Committee …. or (ii) that would alter or amend …

  7. Gender & Sexuality Law Blog » Blog Archive » DOMA gag rule at King & Spalding?: Shared by Will

    I take it back…

  8. @benjaminwittes Agree with your post on Clement, but changed my take on K&S's decision a bit.

  9. […] sweeping ban violates state law where King & Spalding has offices, including California and New York. In any event, personnel throughout the firm might have been astonished to discover that, as of […]

  10. Boy that was dumb. What was Clement thinking? How could anyone think a firm of that size would follow that?

  11. […] of K&S’s diversity committee hadn’t been consulted, and an unusually broad “gag rule” in the contract forbade any employee of K&S from expressing opposition to DOMA, even […]

  12. […] of K&S’s diversity committee hadn’t been consulted, and an unusually broad “gag rule” in the contract forbade any employee of K&S from expressing opposition to DOMA, even […]

  13. […] Gender & Sexuality Law Blog » Blog Archive » DOMA gag rule at King … Of course King & Spalding can take on the representation of a public client on a matter of public concern, but this kind of firm-wide gag rule is quite another. It's illegal and it's wrong. FYI – King & Spalding's website has a lovely . […]

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