Tribe and Trump

When I posted yesterday about the “Goldwater Rule,” I observed that “we would not want to see lawyers disclose confidences” in order to support or defeat a political candidate.  At that point, I had no idea that there was already a controversy brewing over just that issue.  One day earlier, Harvard’s Laurence Tribe had tweeted the following:

I have notes of when Trump phoned me for legal advice in 1996. I'm now figuring out whether our talk was privileged.

Tribe’s tweet was apparently in response to this one from Democratic campaign strategist Robert Shrum

I met Trump once 39 years ago in Paris. He was an amazingly superficial blowhard then. Thankfully never had to deal w him again.

The apposition of the two tweets led many observers to conclude that Tribe was suggesting that he had access to negative information about Trump, learned in the course of a phone call about legal advice, which he was either considering or threatening to disclose.  If so, that would be a breach of legal ethics, as pointed out by Michael Krauss, of George Mason Law School, and criminal defense blogger Scott Greenfield, who went so far as to call for Tribe’s disbarment.

The story was picked up by the Wall Street Journal Law Blog, which obtained this 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.

Here is what I have to say about it:

It was a fair inference that Tribe was hinting at something negative about Trump. The exchange with Shrum was about Trump’s unpleasant personality, and it did seem that Tribe was contemplating the revelation of something similar.  There are other possible inferences, and Tribe has denied that was his intention, but readers of the tweet cannot be blamed for drawing a seemingly obvious conclusion.

Tribe’s communication with Trump about “legal advice” would be covered by Model Rule 1.18, which protects confidential communications from a “prospective client,” and prohibits disclosing such communications “to the disadvantage” of the client. Rule 1.18 was adopted in Massachusetts in 2015, but retroactivity is not an issue because Tribe’s tweet (and potential disclosure) would obviously take place subject to the current rule.

I see no “technical sense” in which disclosure of Trump’s communication would be permissible without his consent.

Even if Tribe did need to “think through” the permissibility of disclosure – which should have been unnecessary, given the obviously confidential nature of the communication – a public tweet was not an appropriate way to do it.

Tribe’s tweet was ill-considered and certainly outside the spirit of Rule 1.18.  His rationalization does not hold up; Trump was entitled to have his confidences respected without having to worry about some later innuendo.   Although this is not a situation, in my opinion, that calls for professional discipline – as Greenfield has claimed – it definitely calls for an apology.

Comments

[JM]

Tribe was concerned about privilege - which this information may not be - privilege basically covers information flowing back and forth between attorney and client for the purpose of legal advice. How pleasant a guy is would not be privileged. So a court could compel this information. A lawyer should not voluntarily reveal confidential information learned during representation - but everyone knew that Trump was/is a blowhard, so this is hardly confidential. My two cents.

[Steve L.]

Tribe tweeted that he was "figuring out whether our talk was privileged," which suggests that he was referring to the content of the talk, not Trump's tone of voice.

In any event, a lawyer's impression of a client's personality is still information gained in the course of representation, and thus confidential.

While it is true that Trump's personality is regularly on public display, Tribe seemed to imply that he could add something previously unknown that would intensify or add to the general impression. It would thus be disadvantageous to Trump, even if cumulative.

[[M][@][c][K]]

It's a pretty easy guess (assuming Trump is not a complete ignoramus, which is a stretch) that he wanted Tribe's views on a question of constitutional law. Considering that to be the issue, one is immediately drawn to the First Amendment, and the likelihood that what Trump wanted was advice on the "public figure" defence. Assuming that Tribe is being a little vague, it may have been that he was seeking advice vis-a-vis Spy Magazine's dubbing of him the "short fingered vulgarian" which appears to have alluded to a subject about which he is very sensitive (and maybe a thread on liability for laughing at a man's endowment should ensue.) In any event, it seems likely that, given Trump's predilection for threatening defamation suits (something he shares with a sometimes habitué of this forum), it was defamation.

[Captain Hruska Carswell, Continuance King]

If I Tweeted that in 1998 Hillary called my law office about a Domestic Relations matter, how long do you think it would be before I received a subpoena from the attorney regulators in my Blue jurisdiction? Even a repulsive bigoted blowhard like Bunker, I mean Trump expects privacy and the cloak of protections offered by the attorney client privilege. Even the worst members of our community deserve the protections of the law.

[anonb]

Brackets

One is reminded of the old gambit of throwing in the "small endowment" statement in a defamatory piece, thus allowing the "truth is a defense" to deter a lawsuit by the target.

[Vote4Trump]

Thank goodness Trump is running. He needs to clean house and bring in real patriots not self-serving types. I really hope he gets in. The prejudice against him is unbelievable.
Hillary does not in way, shape of form represent me.

[[M][a][c][K}]

anonb,

Let's put some substance on the debate. Assume the defence of truth is deployed, should the defendant get discovery? Tumescent discovery or ...

Actually, it is a nice evidentiary question to throw students ... It does in fact raise all sorts of defences to discovery, 1st amendment issues, weird tort questions (per se defamation?), all embedded in awkwardness and the need to keep a straight face while discussing it.

[anon]

actually this issue has come up (pun intended) in torts.

Here's one issue:

If the piece contains multiple defamatory statements, can the effect of the "small endowment" statement be severed and considered de minimus?

Remember the old limerick about the law student named Rex?

(de minimus non curat lex)

See also "Mick Crowley" play ... here, the colloquium is necessary to make out the case, and the "small" reference comes along with it.

[[M][@][c][K]]

Funnily enough in its original formulation that Latin maxim was "de minimus non carat rex," or the king does not bother with trifles - the King being the court.

[twbb]

My guess is Trump consulted with Tribe about Seminole Tribe v. Florida, which SCOTUS had heard in 1995 but of which had not yet issued a ruling through the beginning of 1996.

While SCOTUS was deliberating Trump visited the Seminoles to push a partnership provided they were able to push the state into approving expanded gaming (which would have been greatly helped by a positive SCOTUS outcome). He probably wanted Tribe's opinion of the case and the likely outcome.

In any event, it absolutely should be privileged and it was improper to tweet anything about it.

[Captain Hruska Carswell, Continuance King]

twbb,

Good post. Agreed. Academics like Tribe engaging in this conduct turn an ordinary lawyer like me against the intellectual and academic sides of my profession. It is mean spirited and elitist. Its an ad hominem attack. Another example that honked my colleagues and I off is when Professor Geoffrey Stone penned an op ed piece critical of Bush Supreme Court nominee Harriet Miers. To needle Bush, as Tribe did to Trump, he noted that she was not from a top fifty law school and she does not, like most lawyers, have the intellectual capacity and depth to serve on the Supreme Court. And one wonders why Trump is one step away from the presidency?

[Bernie Burk]

To the above, I'd add that the fact that the consultation occurred (specifically that Trump called Tribe for legal advice) is itself confidential and may not be voluntarily disclosed as Tribe did without the prospective client's consent unless it is generally known (which in this case it obviously wasn't). Very bad form.

--Bernie

[Steve L.]

I am not so sure about that, Bernie. It is widely known that Trump consults lots of attorneys, and there is nothing compromising about the fact that one of them was Larry Tribe. It would be different if Tribe were, for example, a divorce lawyer or counsel for a drug cartel, in which case the fact of consultation might by itself be giving something away. See, by analogy, MR 1.6 comment [13].

MR 1.9 and 1.18 provide that a lawyer in Tribe's position shall not reveal information "to the disadvantage" of the former or prospective client. I do not think that the fact of consultation would by itself disadvantage Trump.

The real problem with Tribe's tweet was the intimation that he had something juicy to reveal, if only he could.

[anon]

Hmmm

SO, here we have an excellent example of the deep problems in legal academia: two supposed experts who can't agree whether the fact of a consultation with an attorney for the purpose of obtaining legal advice is privileged. These "experts" can't even agree on the relevant rule.

One believes that the fact of the consultation is per se a privileged matter so long as the fact of the consultation is not publicly known prior to the attorney's unconsented to disclosure; the other believes that there is some sort of "disadvantaging nature" test to determine whether the fact of the consultation is privileged.

Multiple choice. The reason the profs don't agree is because: a.) there a serious problem with the rules (i.e., this embarrassing debate is not the profs' fault, but rather, the fault of inexcusably ambiguous rules, as this is a common scenario and the rules are supposed to be understood and followed by the lowly practitioners, not geniuses like law profs) or, b.) the rules are purposefully vague, or, c.) there is more than one correct answer, and they are both right, or d.) the uncertainty lies in the fact that these "experts" don't really know what they are talking about, or e.) in the real world, "Right answers" don't matter, it is only the quality of your analysis that counts.

Anyone care to guess which alternative explanation makes the most sense here?

[John Steele]

Steve L. said, "The real problem with Tribe's tweet was the intimation that he had something juicy to reveal, if only he could."

But that's exactly why Bernie's comment is correct. This isn't a difficult analysis. (And that's on top of Tribe's failure to analyze confidentiality distinct from privilege.)

Justice Ginsburg, Trump's former NJ lawyer, and now Tribe have let their emotional reaction to Trump trump their duties. Sad. Make confidentiality great again! (On a more serious note, if it matters, I'm anti-Trump.)

[Steve L.]

I read Bernie to be saying that revealing the fact of consultation would always violate a confidence, even apart from the specific context.

Is that your view as well, John?

[John Steele]

Now you're switching up the facts and argument.

The fact of the consultation is confidential. Depending on the context we may or may not find implied or express consent to reveal. No one, let alone Tribe, has argued that Trump consented to Tribe's revelation and tease. Moreover here, as you yourself said, "The real problem with Tribe's tweet was the intimation that he had something juicy to reveal, if only he could." Again, this isn't difficult to analyze correctly.

Now I'll ask you a question. Suppose one of your former students calls you and says, "I had a legal consult with a public figure a few years ago. The consult is not generally known, but if I could publicly reveal that fact and intimate that there was something juicy about it, that's ok ethically right?" Would you really advise your student that that's a tough, nuanced call?

[anon]

Good point concerning Tribe's possible failure to analyze confidentiality distinct from privilege (The tweet I sent about Mr. Trump having sought my legal advice 20 years breached no confidence and violated no privilege").

Even if viewing the atty-client privilege as solely a testimonial privilege may be technically correct, does the distinction make a difference in this analysis?

Is there any basis for Lubet's "disadvantaging nature" test here?

[John Steele]

"Even if viewing the atty-client privilege as solely a testimonial privilege may be technically correct, does the distinction make a difference in this analysis?"

There is an argument that so long as one does not reveal the *contents* of the communication then the attorney has not failed to protect the privilege. Sometimes the fact of the communication inescapably reveals the content itself but often that's not so. Here, where we're analyzing the propriety of Tribe's comments, there's such an easy and definitive answer w/r/t confidentiality that hypotheticals about privilege aren't needed.

"Is there any basis for Lubet's 'disadvantaging nature' test here?"

As for the "disadvantaging" test, it's useful to drill down on what counts as a confidence under the basic rule of confidentiality. Some jurisdictions define them as "all information relating to the representation," which gets extended to potential representations. The definition also includes all information that could lead a third person to discover protected information. Notice that once Tribe made his comment, lots of commentators have been trying to suss out why Trump was consulting with Tribe. So, under that broad formula, the analysis is easy.

Some jurisdictions define confidences as all information related to the representation that might be "embarrassing or detrimental," and it's here that Steve's observation -- Tribe's tweet [intimated] that he had something juicy to reveal, if only he could" -- once again makes the analysis easy.

Steve makes reference to two additional rules that forbid using the information to the disadvantage of the client (or potential client). We usually resort to those rules to figure out how to behave in different fact patterns than we're looking at here. Here's an example from the comments to one of those rules (1.8): "For example, if a lawyer learns that a client intends to purchase and develop several parcels of land, the lawyer may not use that information to purchase one of the parcels in competition with the client or to recommend that another client make such a purchase. The Rule does not prohibit uses that do not disadvantage the client. For example, a lawyer who learns a government agency's interpretation of trade legislation during the representation of one client may properly use that information to benefit other clients." In any case, neither of those rules suggests that a lawyer may reveal a confidence for mere sport, or to intimate that there's a juicy fact being hidden.

[anon]

JS

Your analysis is persuasive.