A contrarian view of lawyering

Anytime now, the names of those who passed the bar examinations given last year will be released by the Supreme Court. The lucky ones will hold the distinction of being the first passers of the reformed examination format adopted by the high court under Bar Matter No. 2265, principally instituting the combination of the new multiple choice questions, designed to test knowledge of the law, with the more traditional essay type questions, intended to measure the ability to argue and persuade. They will bask in the wave of congratulatory parties; and for many a day savor the triumphant feeling of having arrived.

Having arrived, at what? At being a lawyer.  What, in the real world, is a lawyer supposed to do in order to be considered “a lawyer”?

Paul Clement, who is featured in the Winter 2012 issue of Harvard Law Bulletin, submits that, “[d]efending unpopular positions is what lawyers do.” Not really the common advice given during law school commencement exercises, but, in my view, a precise statement of what exactly a conscientious lawyer, given the complexities of our present day and age, may have to do.

Clement, Harvard Law School graduate ’92, is one such outstanding lawyer and he knows whereof he speaks. He served, at age 45 and one of the youngest to do so, as solicitor general of the United States for three years, from June 2005 to June 2008. He was not a stranger to arguing highly contentious cases before the American Supreme Court. In December 2003, he argued McConnell v. Federal Election Commission, 540 US 93, which upheld a federal statute controlling election expenses known as the Bipartisan Campaign Reform Act of 2002. In January of the following year, he argued Tennessee v. Lane, 541 US 509, which was about the Americans With Disabilities Act that allowed disabled persons to sue states for monetary damages due to their not being able to access public services on account of their disabilities. Also in 2004, he argued Rumsfeld v. Padilla, 542 US 426, which delved on the question of whether the American President, after 9/11, could order the detention as an enemy combatant of an American captured on American soil for the duration of the war against the al-Qaida.

In the spring of last year, Clement walked his talk. The firm that he had belonged to was King & Spalding, LLP, of Atlanta, Georgia which was founded in 1885 by Alexander C. King, who was known to be a walking legal encyclopedia and Jack Spalding, who was very good at handling clients. King & Spalding was hired by the House of Representatives of the United States to defend in the Supreme Court what is officially known the Defense of Marriage Act (Doma).

Like Article 1 of our own Family Code of the Philippines Section 3 of the Doma defines marriage as a union of a man and a woman. In no uncertain terms, it states that “in determining the meaning of any act of Congress or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.” Putting teeth to the definition is Section 2 which states that “no State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.”

The practical impact of those two provisions was to deny to parties of same sex “marriages,” the benefits, rights and privileges afforded by US law only to “married” couples.  By the count of the General Auditing Office as of Dec. 31, 2003, such statutory provisions numbered 1,138. As can be expected in a litigious society like the United States, the Doma spark ignited not only a conflagration of suits but a lot of off-court noise from affected citizens.

Gay rights groups zeroed in on King & Spalding, threatening it not only with naming and shaming but also, in some form or another, pro-active measures designed to affect its bottom line. King & Spalding succumbed to the pressure and, citing an alleged inadequacy in the firm’s “vetting process” when it accepted the engagement, withdrew its representation of the House.

Clement in disagreement resigned from King & Spalding and continued to defend the Doma, arguing that “the job of a lawyer is not to referee policy issues,” the determination of which precisely belong to the courts. Mr. Socarides of “Equality Matters” countered that Clement misses the point because “the only principle he wishes to defend is discrimination and second class citizenship for gay Americans.”

Ricardo J. Romulo is a senior partner of Romulo Mabanta Buenaventura Sayoc & De Los Angeles.