The Shirley Sherrod and DOMA cases — a contrast in how law firms are treated

The Shirley Sherrod and DOMA cases — a contrast in how law firms are treated

I followed Shirley Sherrod’s lawsuit against Andrew Breitbart and Larry O’Connor over an edited video of Sherrod’s speech to an NAACP chapter very carefully early on, demonstrating beyond doubt that the core of Sherrod’s claim, that she was falsely portrayed in a short video Breitbart released, was not supported by the actual edited video.

I detailed, frame by frame, how each of the elements of Sherrod’s story that she alleged was not in the video was in fact in the video.  The video was not misleading.  The myth that Breitbart deceptively edited the video lives on, nonetheless, as the gospel truth in the liberal blogosphere and media.

Not entirely surprisingly, the claim has survived an early attempt to have it thrown out as a SLAPP suit.  Sherrod is represented by a powerhouse law firm, Kirkland & Ellis, primarily by big name litigator, Thomas Yanucci.   Reportedly, the representation is for free.

I had not paid much attention to the case recently until news broke that in September Sherrod, through Kirkland & Ellis, had sought to add Breitbart’s widow Susie as as defendant in the case in light of Andrew’s death and failure to create an Estate against which Sherrod could proceed.  Holding Susie responsible for Andrew’s alleged misconduct obviously also would affect the future of their children. 

Susie has objected to this attempt, arguing among other things, that the claim does not comply with California law.  In response, Kirkland & Ellis clarified its position a bit, arguing that Susie would not be added “in her individual capacity” (what that would mean is unclear) and offering to consult with her counsel as to whether there was some other person or corporate entity that could be substituted.  It’s hard to see how that would happen, so what appears to be a softened position may not be much of anything.  As of this writing, there has been no judicial decision.

Considering that Sherrod already has cashed in on a huge settlement with the federal government, the complete lack of involvement of Andrew’s widow, and the lack of substance to the claim, this seems to be particularly vindictive. 

It may be Sherrod’s right, and Kirkland & Ellis appears simply to be zealously representing their client, but it brought back memories of how another large law firm was treated and forced to drop represenation under boycott and secondary boycott threats in a politically charged case.

That law firm was King & Spalding, which agreed to represent the House of Representatives in DOMA litigation after the Obama administration, having defended DOMA for years in court, abruptly changed its mind and instructed the DOJ not to represent the House.  The House then hired King & Spalding, specifically litigator Paul Clement.

At that point, an aggressive boycott campaign was organized by well-funded entities like Human Rights Campaign to force King & Spalding to drop the represenation of the House.  The boycott threats were to include not only picketing and boycotting King & Spalding, but also dragging clients of the law firm into the dispute.  Companies such as Coca Cola, King & Spalding’s largest client, were threatened with boycotts and protests even though those clients had absolutely nothing to do with the DOMA case.

King & Spalding gave in to the pressure quickly, and dropped the representation.  In protest, Clement resigned from the firm.

It was a tactic we have seen the left execute repeatedly and with some limited success, against conservative radio and television personalities.  The Stop Rush movement, even though it has not forced Limbaugh off the air and in fact his contract was reupped by Cumulus Broadcasting, continues to toil away harrassing Limbaugh advertisers.

In the King & Spalding case, the firm had no problem representing Gitmo detainess, but the House was off limits as a client because the legal position on DOMA, while a good faith legal position until recently adopted by the Obama administration, was politically unpopular with those skilled in boycotts and threats.

I was and am critical of this tactic of politicizing all aspects of life and trying to deprive litigants of counsel by pressuring law firms to drop representation of politically unpopular causes.  I would no more have threatened King & Spalding over its Gitmo representation than threatened it over other cases in which it was acting as legal counsel.

So getting back to Kirkland & Ellis, there are rumblings in the conservative blogosphere over the seemingly vindictive attack on Andrew’s widow and children. 

Protecting Andrews’s family from the viciousness routinely visited on Andrew while alive is important to many in the conservative blogosphere.

And that presents a conundrum routinely facing conservatives.  Use the baseless and vicious tactics of the left, or unilaterally do the right thing?

Update:  I should note that TruthRevolt.org was formed recently to push back with some of the tactics used by the left against conservatives.  Its first action was a boycott of advertisers on Al Sharpton’s show.  It’s a shame it has come to this, but after a decade of being the punching bag for left-wing boycotts, it’s understandable that some people feel the need to adopt their tactics.

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