Paul L. Caron

Wednesday, August 24, 2016

Should Larry Tribe Be Disbarred For His Trump Tweet?


Simple Justice, Disbar Laurence Tribe:

Tribe’s twit is an outrage and affront to legal ethics. He does not deserve to be part of a profession that exists to serve and protect clients. Disbar Laurence Tribe.

Wall Street Journal Law Blog, Laurence Tribe Tweet About Trump Sparks Controversy:

Prof. Tribe has responded in an email to Law Blog:

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.

Legal Education | Permalink


This does dent Trump's cry of anti-elitism, doesn't it?

Posted by: mike livingston | Aug 25, 2016 4:13:38 AM

Given the hideous level of corruption in law today—i.e. Hillary Clinton—this is pretty small stuff.

Posted by: Michael W. Perry | Aug 24, 2016 3:46:06 PM

Well, per Michael Cicchini's note, I stand corrected as to Model Rules states that do not limit the lawyer confidentiality rule to confidential information. Apparently, at least in Wisconsin, which has such a rule, the fact of representation (or, presumably, consultation) cannot be disclosed under the confidentiality rule. Illinois seems also to take such a view.
Conversely, in Model Code states, and in Model Rules states that use the "confidential information" formulation in their confidentiality rules (including Massachusetts, where Professor Tribe is admitted to practice), the identity of a lawyer's client is not protected from disclosure. Unless, as I said above, disclosing the representation would effectively disclose some other confidential fact. Eric Rasmussen's comments give one example of a situation that falls into that exception -- if the subject matter of the consultation is confidential (a tax whistleblowing issue) and the lawyer's practice is so specialized that revealing the fact of a consultation would be tantamount to divulging the subject matter.
However, the default rule is emphatically not, as Eric seems to recognize (and, excepting states like Wisconsin and Illinois), that the mere fact of consultation or representation is presumed to be confidential. If the client wants it to be confidential, he needs to ask the lawyer to hold it in confidence. Given that expedient, I'm not sure the situation Eric poses in his second post requires a special rule.
Getting back to Tribe's situation, assuming that he is subject to the Massachusetts Rules of Professional Conduct and not those of any other bar, and given that the breadth of his practice would not offer any clue as to the subject on which Trump sought representation, he hasn't violated any rule by making the disclosure unless Trump specifically instructed him otherwise.

Posted by: Matt | Aug 24, 2016 2:36:15 PM

Tribe is a member of the California bar. Disclosing that someone is a client without the client's consent can be a violation. Was Trump a client? Test is would a reasonable person think Trump is a client. What is the lesson here? Keep your big mouth shut. Don't seek to dance in the limelight and then be upset when you get tomatoes thrown at you.

Posted by: Cheyanna Jaffke | Aug 24, 2016 12:47:02 PM

There needs to be a tort rule, not just a privilege rule for lawyers, about keeping information volunteered by someone in inquiries to someone who might provide services to a project. Is there one? I had an idea for a whistleblower suit against Citigroup for tax violations. (case #1:15-cv-7826, United States District Court, Southern District of New York, State of New York ex rel. Eric Rasmusen v. Citigroup, Inc.) The conflicts partner of one big law firm I asked about representing me phoned me up and said Citigroup was a client of theirs so they couldn't. Without some kind of confidentiality rule (or, lacking that, moral decency), she not only could have told Citigroup to watch out for me but perhaps would have had an ethical obligation to do so to help her client. Or, suppose the law firm that did end up representing me had turned me down. We need a rule that would prevent them from stealing my idea and filing suit against Citigroup on their own behalf. This goes for venture capital firms, patent lawyers, and many other kinds of businesses where mere knowledge that an inquiry was made is valuable information.

Posted by: Eric Rasmusen | Aug 24, 2016 10:56:56 AM

The rule ought to be that a reasonable man would expect the fact that he phoned up the lawyer to be kept secret. In this case, if this information would somehow embarass Trump, perhaps because he was being accused of something back then that he said was completely legal, then it is unethical of Tribe to disclose it. For example, if a tax whistleblower lawyer phones up Citigroup and tells them that one of its employees, John Doe, was asking him about possible representation but he turned him down, I'd call that unethical.

Posted by: Eric Rasmusen | Aug 24, 2016 10:42:01 AM

The rule of privilege is an evidentiary rule applicable at trials and other court proceedings, and is completely different from ethics rule 1.9. In Wisconsin, which has adopted the ABA model rule 1.9, our office of lawyer regulation and state bar take the position that the disclosure of even public information violates the rule. They also believe that telling others that you met with or consulted with someone is also a violation. I believe they are reading the rule too broadly, and petitioned our supreme court to change it so that lawyers can discuss public information about their closed cases. (I lost at the Wisconsin supreme court, 4-3.) But this just shows two things: (1) the absurdity of rule 1.9; and (2) the complete failure of legal education as few lawyers realize the distinction. You can find my article on rule 1.9 here: You can find my unsuccessful petition to change rule 1.9 and the state bar's opposition to my petition here:

Posted by: Michael Cicchini | Aug 24, 2016 8:48:42 AM

I wish we could kick people like you out of our tribe, Tribe.

Posted by: Anon | Aug 24, 2016 8:08:16 AM

It's not cynicism. It's an enemies list. Tribe was added to that list when he left the reservation on the IRS scandal.

Posted by: AMTbuff | Aug 24, 2016 7:06:47 AM

On a more substantive note, thanks for introducing me to Tribe's twitter feed, which is a gas.

Posted by: Matt | Aug 24, 2016 6:54:14 AM

Seriously? I don't think anyone believes that the identity of a lawyer's client, or a client's lawyer, is privileged information, outside of special circumstances (such as where disclosing the representation would effectively disclose some other confidential fact). Lawyers advertise their high-profile representations all the time. Privilege is generally limited to the actual advice provided by the lawyer, or the confidential information communicated by the client to the lawyer in seeking the advice. It is a massive stretch to suggest that the mere existence of a preliminary conversation -- without even hiring the lawyer -- would be privileged. (Note: I'm using "privilege" here to refer to confidential information that the lawyer is prohibited from disclosing under ethics rules, which is generally coextensive with the set of information that would be privileged from disclosure to a third party in a legal proceeding.)

Posted by: Matt | Aug 24, 2016 6:47:52 AM

Seriously, first the record setting backtracking on the IRS scandal...At a minimum he should hire a Tweeter editor. Ah heck, he will recant on this one too.

Posted by: MG | Aug 24, 2016 6:34:45 AM

"Just kidding" is the refuge of scoundrels.

Posted by: William Woody | Aug 24, 2016 6:33:49 AM