Laurence Tribe Takes on Twitter Bar Over Trump Tweet

, The National Law Journal

   | 11 Comments

What got lawyers so riled up by Tribe’s Twitter question about his call with Donald Trump? And is there a straight answer?

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What's being said

  • R. Lempert

    Unless the law has changed during the past decade or so when I ceased following this topic closely, except in rare circumstances the identity of a client is not privileged nor is the fact that a person consulted an attorney seeking legal advice. Lawyers would like to see the privilege apply more broadly, but the general rule is that if a person has a legitimate need to know the identity of a client and the fact that a consultation occurred, these facts are not privileged. What the client said to the attorney would be privileged even though the attorney eventually decided not to represent the would-be client, but conversation after the attorney made clear that he would not take on the client would not be privileged, nor would conversation be privileged if the topic switched from legal advice to business advice. Moreover, if the advice sought was in furtherance of a criminal scheme or other legal wrong, there would be no privilege. Without knowing more about the conversation‘s substance, one cannot know whether talk abvout the matter Tribe referred to would have been privileged. The attorney- client privilege which applies only in situations of compelled disclosure operates as an ethical rule in other circumstances. The ethical obligation of attorneys is not, however, limited to protecting what the privilege protects. The Bar can determine that there is a professional obligation on attorneys to keep confidences beyond those the privilege protects unless disclosure is compelled by a legal authority -e.g. The courts or the Congress. One would have to look at the ethical code of the Massachusetts Bar, assuming Tribe is a member, to know how the issues this matter raises are treated. Moreover, one should be cognizant of the fact that professional ethics codes hav a history of declaring unethical matters that from the standpoint of the public good are morally proper and maybe desirable, the one time ethical prohibition of advertising is a salient example. Tribe is an outstanding attorney/law professor who once taught evidence, whose ethics, to my knowledge, has never been questioned. Absent specific evidence to the contrary, I would trust his judgment.

  • PaulSteinberg

    The lesson for the public is to be very careful about what you disclose to your attorney, since there are attorneys who will abuse a confidence. My favorite example is the tax attorney who was consulted by another attorney on a personal tax matter. The tax attorney found out some questionable items, and then blackmailed the attorney into giving up all of his NY client book. When informed of this, the Disciplinary Cmte replied that the facts failed to state a claim of attorney misconduct. Tribe is not the first attorney to disclose a client confidence to further his own objectives, and he will not be the last. Tribe has damaged the image of the legal profession, but he has done the public a service in letting them know the risks of speaking candidly with an attorney.

  • Ladyj8816

    Geesh. Trump mentions Tribe once during a Republican debate, and he latches on to the Trump media teet? Whist I detest the term "media whore," I do think it applies here. And, btw, my non-legal advice to Tribe: Leave the media manipulations to the masters...You suck at it.

  • H Betke

    Well Lawrence... How has your 5 minutes of fame worked out for you?

  • Darren McKinney

    The only thing Larry Tribe needs to figure out is whether he wants to carry on as a respected law professor or remove all doubt and openly embrace life as a shameless partisan hack with situational ethics.

  • LawProf John Banzhaf

    LawNewz.com reached out George Washington University Law School Professor John Banzhaf to discuss the potential issues surrounding this matter. Prof. Banzhaf specializes in public interest law, but is also well known for successfully filing formal complaints against attorneys over ethical violations. Most notably, he played a role in the disbarment and civil litigation against Duke lacrosse prosecutor Mike Nifong. Prof. Banzhaf has also filed ethics complaints against several of the prosecutors involved with bringing charges against Baltimore police officers over the death of Freddie Gray. Prof. Banzahf reviewed the various articles published on this matter and concluded that the tweets “certainly constitute a breach of attorney-client confidentiality, at the very least.” Based on the available evidence, Prof. Banzhaf said it was clear that an attorney-client relationship existed between Trump and Tribe, as Tribe admits Trump sought his legal advice. Furthermore, the existence of notes from conversation suggests it was a rather extensive discussion, according to Prof. Banzhaf. He then explained that when a client contacts an attorney for legal advice, the client has an expectation that even the fact he contacted the lawyer will remain confidential. “It is not up to the lawyer to put himself in the client’s shoes to determine whether something should be confidential,” Banzhaf said. “An attorney must assume a legal conversation with a client demands confidentiality, unless or until the client specifically waives the privilege” (or certain circumstances that do not apply here occur). While Prof. Banzhaf believes it should’ve been clear to Tribe that this was not even a borderline issue, he was in utter disbelief about the decision to address this matter on Twitter to begin with. “This is the dumbest thing I’ve ever heard,” Prof. Banzhaf said. “He is a noted attorney and professor at Harvard where he has many legal colleagues … to help him think through the problem if desired. …The idea that he put it on twitter is absurd.” Prof. Banzhaf was also critical of Tribe’s continued attempts to defend his actions, saying, “Subsequently doubling down on this matter makes even less sense.” ly/2bajq1Z

  • Cliff

    If he‘s calling you for legal advice, he‘s a prospective client. I have to laugh at the statement that "I have no reason to doubt he let others know that he was calling me." No reason to doubt?? But also, no reason to think so? If you don‘t know, you have an ethical duty to keep your mouth shut.

  • Tim Morgan

    Privilege applies to communications from the client and responses or advice from the client. If no such substance appears in the notes, there is no clear rule of confidentiality. In fact, the notes are protected legal work-product: that privilege, unlike attorney-client, belongs to the lawyer.

  • Larry Winkler

    If Trump was not a (prospective) client, then no attorney client privilege is invoked. I guess it‘s par for course in this idiocracy that "legal experts" are just as dumb than the next guy.

  • Russ LaPeer

    What is wrong is Professor Tribe? Do doctrinaire political views "trump" longstanding, ancient legal ethics and privileges that even we pedestrian lawyers know well and have recognized ourselves obligated to all our professional careers? I could not trust him to consult with him about anything.

  • Pop

    Typical professorial baloney-what‘s OK for me is not OK for you

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