Yesterday, Larry Tribe tweeted: “I have notes of when Trump phoned me for legal advice in 1996. I’m now figuring out whether our talk was privileged.”
There is nothing to figure out. Except in extraordinary situations, a lawyer cannot reveal “information relating to the representation of a client” unless the client gives informed consent or the disclosure is impliedly authorized in order to carry out the representation.
A lawyer’s dislike for the person seeking legal advice or that person’s politics is not among the circumstances that justify disclosure.
Surely, Tribe knows this. As Scott Greenfield says, what Tribe really tried to figure out was how to make it appear that he has damaging information obtained from Donald Trump that he would reveal, but for that lawyer technicality of “privilege.”
Tribe’s tweet shows that he figured this out. However, he did not figure out how to accomplish this without violating his professional responsibility.
First, as noted above, a lawyer cannot reveal information relating to the representation of a client without consent. Information that someone sought legal advice arguably is itself information relating to a representation.
Second, as Greenfield contends, lawyers have duties beyond the obligation to maintain client confidences. One of them is a duty of loyalty to a client — a duty not to intentionally use his fiduciary relationship to harm a client. This duty extends beyond the course of any representation.
Tribe’s tweet violates that duty of loyalty. He is intentionally using his former relationship with Trump to cast him in a negative light, hoping to injure his presidential bid. Why else would Tribe have sent out such a tweet?
Tribe’s response is to say to critics: “You must think just seeking legal advice makes someone look guilty of wrongdoing. What about the rule of law? Crazy!”
But compliance with the ethical rule against disclosure doesn’t hinge on whether the lawyer’s disclosure makes the client look guilty. The prohibition exists regardless of how it makes the client look. If the disclosure is innocuous, the client might well consent. But it’s the client’s call.
Moreover, Tribe’s disclosure is not innocuous; therefore he betrayed his duty of loyalty. The fact that Trump sought legal advice from a very expensive lawyer, coupled with Tribe’s statement that he was trying to figure out whether he could tell the public about it, casts Trump in a negative light for some whose vote he seeks. It therefore will tend to injure his bid for the presidency.
Tribe sets up a straw man when he argues that seeking legal advice doesn’t make the person who seeks it “look guilty of wrongdoing.” If it makes some people think that Trump had a serious legal problem — and why contact Larry Tribe otherwise? — that’s injurious.
Tribe capped off his disgraceful performance by childishly tweeting: “I’ve concluded my Trump notes probl’y aren’t priv’gd. I cd release em if I decided yes, but I’ve decided no.”
Translation: I’ve caused the damage I set out to cause; why increase the risk of being disciplined by the bar?