Aug 26, 2016 The importance of protecting confidences of clients and potential clients, and Laurence Tribe’s poor example
Nearly thirty years ago, I made my first visit to a Supreme Court session while in law school, having previously visited briefly on my first trip to Washington, D.C., a dozen years earlier, when I saw Nixon entering our hotel within an hour of our check-in, and only four months before he resigned.
I watched impressed as Harvard Law School Professor Laurence Tribe argued to the justices as if he were one of them, looking at home and comfortable in his skin.
After the oral argument, as fortune would have it, Professor Tribe was walking down the Supreme Court’s front steps near me, without anyone in tow. I knew that he had penned a seemingly great treatise on Constitutional law, and understood him to be a supporter of civil liberties. I was in awe. Professor Tribe was kind in answering my question about why Justices Brennan and Marshall had asked no questions during his case’s oral argument, with Tribe surmising in response that neither justice felt a need to clarify anything through questions for that case. Then he walked away to his next obligation.
The next year, while a third year law student, I took the legal ethics class, which covered the model rules of professional conduct, which includes the duty not to disclose confidential information learned from potential clients. In Masachusetts, where Professor Tribe is barred, that rule is in Ma. Professional Conduct Rule 1.19.
The lawyer’s ethical rule to keep secret the confidential information of potential and actual clients is very important. Relying on lawyers’ obligations to maintain confidentiality, people turn to them often with their most confidential information and concerns. We want people to feel free to turn to lawyers for legal help, without fear of being outed by the lawyer for doing so.
With that backdrop, Professor Tribe — who, like I, fully opposes Donald Trump’s presidential candidacy — seriously disappointed me when he tweeted the following on August 16, 2016: “I have notes of when Trump phoned me for legal advice in 1996. I’m now figuring out whether our talk was privileged.” Later that day, Professor Tribe tweeted: “I’ve concluded my Trump notes prob’ly aren’t priv’gd. I cd release em if I decide yes, but I’ve decided no.”
How do Professor Tribe’s above two tweets not clash with Massachusetts Professional Conduct Rule 1.19, addressed above? The very act of seeking a lawyer’s legal advice can itself be confidential information, and in my law practice I protect it as such. Even assuming for argument’s sake no ethical issue about disclosing such a call for legal advice, why would a lawyer muddy his or her reputation by disclosing that the call was even made?
As to Professor Tribe’s second tweet above, he claimed that his notes from talking with Trump probably are not privileged, and that he could release them if he wanted. Trump does not say what makes his notes of a legal consultation — whether with Trump or anyone else — probably not privileged. Also, “probably not privileged” is not the same as “not privileged”. Why would Tribe risk his reputation so?
I looked through Tribe’s twitter-feed for justifying either of his above-two tweets, and only found the following lame statements:
- “client’s public boast that he sought the lawyer’s advice can make the fact of seeking it nonconfid’ntl & unprivil’gd” (Aug. 18, 2016)
- “Plus DJT has trumpeted his reliance on my legal views, including my view re Cruz ineligibility to serve as POTUS” (Aug. 18, 2016)
As to the first of the above two tweets, I reply that even if Trump “boast[ed] he sought” Professor Tribe’s advice (and Tribe does not say that Trump did so), why would Tribe not have made that clear in his first series of tweets on Trump’s 1996 call to Tribe?
Regarding the second of Professor Tribe’s two tweets, I reply that Trump’s “trumpet[ing] his reliance” on Professor Tribe’s legal views does not disclose that the views came from a Trump-Tribe legal consultation, versus from one or more of Professor Tribe’s many legal commentaries. One would doubt that Tribe would have agreed to give legal advice to help Trump’s candidacy. Moreover, Tribe last February publicly, rather than through any legal consultation, stated his view about Cruz’s ineligibility to be president, by arguing at a Harvard legal forum “that Cruz is ineligible to hold the presidency, using what [Tribe] called Cruz’s own strict interpretation of the Constitution.”
Tribe gaffed in disclosing on Twitter that Trump called him in 1996 for legal advice, further gaffed when claiming he could disclose his notes from that call, gaffed even further with his lame and non-specific talk of a “client’s public boasting” of seeking a lawyer’s advice, particularly where it seems that Trump never became a client rather than a potential client, and gained no traction in pointing out Trump’s reliance on Tribe’s “legal views” versus “legal advice” about Ted Cruz. Tribe’s further gaffe has beein in failing simply to delete his August 16 tweet that Trump had called Tribe for legal advice in the first place.
Professor Tribe only seems to have two possible escape routes in this scandal, one is that he is crazy, and the other that the Trump tweet was posted by an impostor. I have no information that Professor Tribe has been crazy, as opposed to exercising very poor judgment in revealing that Trump called him in 1996 for legal advice. As to the impostor question, Professor Tribe laid that to rest in his below-reprinted email to the Wall Street Journal. Moreover, even if one doubted the authenticity of Tribe’s email reply to the Wall Street Journal, if an impostor created Tribe’s twitter account — which is not listed by Twitter as verified, has a small number of followers (5441) in relation to his starring role among law professors, , and is replete with tweets throughout the day, which seems possibly at odds with someone seemingly as busy as Tribe — it would still seem that this is in fact Tribe’s own Twitter account. That is because with all the brouhaha that Tribe’s comments about Trump’s 1996 call to Tribe for legal advice have caused online (for instance here and here), Tribe does not seem to have contested that this in fact is his Twitter account. In any event, why go through wondering whether an impostor posted under Tribe’s name, when the Wall Street Journal‘s LawBlog confirms Tribe to have penned the tweet himself, seeing that Trump replied (apparently by August 19) to LawBlog’s inquiry about Tribe’s August 16 tweet about Trump’s 1996 call to Tribe for legal advice, with the following lame defense/response from Tribe:
“The tweet I sent about Mr. Trump having sought my legal advice 20 years ago breached no confidence and violated no privilege. 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. He often expresses pride in seeking expert counsel. Besides, the fact that he sought advice on a legal question was nothing to be ashamed about.
“In any event, I have never revealed the substantive topic of his inquiry, never said whether or not I offered him any advice, never agreed to represent him, and have said nothing at all about the content of our conversation other than that he asked my legal views about something. That shouldn’t have raised the eyebrows it did; I guess I underestimated the cynicism that pervades some corners of the Twitterverse.”
Tribe’s above email is an insufficient explanation of his tweet about Trump’s 1996 call to Tribe for legal advice. Tribe’s disclosure of Trump’s 1996 call, then, descended to Trump’s level — and to Trump’s preferred Twitter soundbite medium — to reveal Trump’s 1996 call, rather than keeping that call under wraps.
Tribe has an opportunity to try to do reputational damage control over revealing Trump’s 1996 call for legal advice. Instead, Tribe has done the opposite, by leaving online his tweet about Trump.