Sunday, August 28, 2016
Go to Laurence Tribe’s Twitter site and you will read the famous constitutional professor’s byline: "Descartes last words: I think not."
Apparently Prof. Tribe was not thinking when he made this recent twitter post: I have notes of when Trump phoned me for legal advice in 1996. I'm now figuring out whether our talk was privileged.
Really? @trump_democrat does not disclose if the writer is a lawyer, however the author’s response seems to summarize the concern quite nicely. “You just said for legal advice. Sounds privileged to me.” Well, almost.
Before I discuss the reasons why Prof. Tribe might better have restrained himself from making this particular post, let me address a fundamental ethics misunderstanding. The communication between Prof. Tribe and Mr. Trump was not privileged. The communication was confidential. Privilege applies during a hearing before a tribunal or other process to which a lawyer may be subpoenaed. Otherwise the communication is confidential. Now that I have the annoyance of a professor teaching Professional Responsibility out of the way, let’s get to the real issue.
Unless in Prof. Tribe’s notes there is a release from Mr. Trump acknowledging that the telephone consult was not confidential, or Mr. Trump gave permission for the current disclosure, yes- the information is confidential. Is the fact that Mr. Trump contacted Prof. Tribe in the first instance confidential? In most cases yes, and definitely in this case. I am curious why Mr. Trump would need the advice of a constitutional scholar. If the call was made to a construction law expert, the communication would not create any ripples. Are you at least a bit inquisitive? Are some of you speculating? That is why this information should be confidential. And under any circumstances, the notes are confidential. ABA Model Rules of Professional Conduct Rule 1. 18 (b): Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information (the stated exceptions do not apply in this case). (Mass. Rule 1.6 addresses confidentiality).
Making matters worse from an integrity prospective, Prof. Tribe later tweeted: I did wonder whether disclosing my notes of that call would be improper, thought that raising that question in a tweet might help me think the issue through, decided that it wouldn’t be improper in any technical sense but concluded that I wouldn’t disclose the notes in any event. People who doubt the propriety of my even having mentioned that Mr. Trump sought my counsel assume that the very fact of his call was some kind of secret. I don’t know for sure, but I have no reason to doubt that he let others know that he was calling me.j
In other words, I don’t think I violated ethics, because I am guessing that Donald Trump told others that he called me, making the fact of the call not confidential. I am guessing that Prof. Tribe just jumped further into the proverbial ethics fire.
It is unfortunate that Prof. Tribe's response mimics Mr. Trump's favored approach – denial and supposition. So much better would have been a response that he may have acted too quickly and would have done well to walk down the hall and consult a legal ethics professor prior to writing the post.
Earlier, Attorney Thomas Wells of New Jersey, wrote a Huffington Post piece that raised similar concerns. The piece, entitled Donald Trump Hired Me As An Attorney. Please Don’t Support Him For President. Attorney Wells seems to have less concern than Prof. Tribe in revealing confidential information. Attorney Wells proclaims such sweeping generalities as “The man lies all the time”. The fact that many have already formed that conclusion does not excuse the statement. Has Attorney Wells never heard of loyalty to a client? The fact that Attorney Wells discloses no information that would shock the public at this point does not excuse the disclosures.
Fellas, this is what representing unpopular clients is all about.
Why am I reporting this? Abandoning the fundamental rules governing lawyer conduct is dangerous. In an age when government attempts to limit attorney client privilege and restrict fundamental lawyering principles, what we do not need is lawyers failing to honor long standing ethics prohibitions because their egos compel them to disclose confidences in a public forum. Lawyers are most often at the forefront of effective Human Rights advocacy. Human Rights principles look to eliminate pretext and substitute dignity. We do not need lawyers discrediting the profession with the pretext of protecting the public.