Appellate Practice

Lawyer leaves Winston & Strawn to defend Utah ban on same-sex marriage

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Updated: Winston & Strawn partner Gene Schaerr is leaving the law firm to defend Utah’s ban on same-sex marriage.

Utah Attorney General Sean Reyes announced on Thursday that Schaerr will be lead outside counsel for the state’s defense of the ban in a case pending before the Denver-based 10th U.S. Circuit Court of Appeals, report BuzzFeed and the Deseret News.

Reyes extended his search for outside counsel to two weeks because of a lack of interest, the Deseret News says. A dozen lawyers sought the job.

A Washington, D.C., litigation partner, Schaerr was chair of Winston & Strawn’s appellate, critical motions and constitutional litigation practice. He will cap his fee at $200,000 for the 10th Circuit phase of the litigation, according to a press release.

A conservative think tank, the Sutherland Institute, will also pay Schaerr to become a paid fellow writing papers about family and marriage law, the Deseret News says. The institute was “heavily involved” in the state’s hiring decision, the story says. Institute executive director Paul Mero told the newspaper that Schaerr is “our guy.”

“He meets the criteria that Sutherland Institute has been insisting on,” Mero said. “I think he has the capability to provide a deep, rich, meaningful case before the 10th Circuit, and a winning case.”

Other outside lawyers working on the case will be former Michigan solicitor general John Bursch of Warner Norcross & Judd, and Monte Neil Stewart of Stewart Taylor & Morris. Bursch and Stewart will each cap their fees at $50,000 for the 10th Circuit appeal.

Reyes said in the press release that Schaerr left his firm so he could focus exclusively on the case. But representation of gay-marriage opponents has proved controversial in the past. King & Spalding dropped its representation of House members supporting the Defense of Marriage Act, spurring partner Paul Clement to resign from the law firm.

And in 2011 Foley & Lardner saw its “corporate equality” score drop in a rating by the Human Rights Campaign because it represented a client opposing gay marriage. The firm received a perfect score a year later after asserting it would no longer represent gay-marriage opponents.

Winston & Strawn issued this statement to the ABA Journal: “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 in order to lead the State’s appellate efforts in the Kitchen, et al. v. Herbert et. al case. Linda Coberly will continue to lead the firm’s appellate practice and will facilitate a seamless transition for our clients. The firm wishes Gene all the best.”

Updated at 9:44 a.m. to include statement by Winston & Strawn.

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