In the constellation of stars hovering over Harvard Law School, Laurence Tribe’s burns bright. A constitutional law professor of great renown, he’s also gained some traction by having argued 35 cases before the United States Supreme Court. So make fun of academics all you want, Tribe is no slouch.
Which made this twit all the more inexplicable and bizarre:
I have notes of when Trump phoned me for legal advice in 1996. I’m now figuring out whether our talk was privileged. https://t.co/2v2BgxjXQ3
— Laurence Tribe (@tribelaw) August 16, 2016
My initial reaction was one of shock that someone of Tribe’s stature would ask a question that any first year could answer with his eyes closed. I responded, “It just doesn’t seem possible that a Harvard law professor would ask this.” Upon further deliberation, however, my reaction was inadequate.
Following my responsive twit, essentially every lawyer on the twitters, plus a good number of non-lawyers, reacted as I did. Trace Rabern said it first, “the answer is in the question.” While it wasn’t a question of privilege, since that’s a testimonial issue (worth 2 points on a 1L professional responsibility quiz), but one of client confidences, it was obvious. Any information disclosed by a person seeking legal advice is confidential.*
Indeed, the response on the twitters was overwhelming. There was but one twit supporting the reasonableness of Tribe’s question, coming from a lower tier academic, who offered this defense to Harvard’s shining star:
When questioned as to why, given such a bald assertion, he would say that, Johnson blocked me and whined to Tribe about the death of “civil discourse.”** Aside from this, the WTF train had no seats left, filled with lawyers incredulous at Tribe asking such a ridiculously obvious question.
But that wasn’t the point of Tribe’s twit. He wasn’t really asking a question, but trying to create plausible deniability while revealing publicly that he was in possession of damaging information obtained from Donald Trump that he would reveal, but for that lawyer technicality of “privilege.” And he did so in a fashion that left no doubt but that whatever knowledge he gleaned from his having been asked for “legal advice” from Trump, it was really good dirt.
Or, to put it otherwise, Tribe used this obviously insipid question to deliberately do harm to a client whose confidences he was ethically obligated to maintain.
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. It even extends beyond death. This is fundamental to the attorney/client relationship, and it’s inconceivable that any lawyer, even a law professor, would have any confusion whatsoever about where his duty lies.
Laurence Tribe set out to harm Trump with his twit, concealed as a question but intended to raise the obvious specter that he, as the recipient of Trump’s deep legal secret, had information that was damaging, maybe devastating, about a candidate for President. A candidate, of course, whom Tribe manifestly opposed.
Ironically, the void of information generated by his twit is likely more damaging than whatever it is that Tribe learned in the course of representation. It conjured up scary and horrible thoughts, because those opposed to Trump will imagine the worst when the reality may be far less damaging, if not damaging at all. We don’t know what Tribe might be referring to, so our minds create whatever they want to create to suit hatred of Trump.
To suppose that someone as smart as Larry Tribe didn’t realize exactly what he was doing here is naive. My initial reaction was naive. Tribe is no fool, no matter what you think of academics. Tribe was being crafty, doing harm under the guise of asking an innocent question. To believe that this wasn’t intentional is to stretch Hanlon’s Razor way beyond its breaking point. There isn’t a chance in hell Tribe didn’t know what he put out in public about a client confidence.
There is no room in the legal profession for someone so utterly lacking in ethics, so venal in his manipulation of a confidence to harm a client. Maybe he doesn’t care. Maybe he’s well past his expiration date, and he’s willing to burn his ethics to harm Trump. Maybe Tribe, like so many others, hates Trump so dearly that he believes anything, absolutely anything, is fair game to stop Trump from becoming president.
Regardless, 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.
But Mark Draughn’s observation gave rise to Tribe’s craftiness. Of course Tribe knew the answer. It was impossible for him not to. What was I thinking?
*Yes, there are rare exceptions, such as the crime-fraud exception, but there is nothing to indicate that this falls into any rare categorical exception, so don’t go there.
**As it turned out, Johnson is fervently progressive and vehemently anti-Trump, like Tribe. In another age, Stanford Law School might look askance at having him lecture its students. Today, he’s more likely to be the guest of honor at a “Dildoes for David” protest.
Update: Ever the height of graciousness, Tribe has reached a decision.
But should we be concerned with his broadcasting this on twitter? Not at all, he says.
Disingenuous comes to mind.