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.
It seems to me, even though technically the fact that one represented someone might be publicly-available knowledge, at least to someone who could go to the courthouse, and ask to see the public case file, that even mentioning that you have represented a specific person is a line not to cross.
I don’t think I’ve ever said (without permission), nor could I imagine saying (without permission), that “I have represented so-and-so.” If I had, I would expect a mild rebuke; stronger if I divulged anything more than that I had represented the person. (I think the closest I’ve come is explaining my possession of a drawing made by a famous prisoner by explaining that I had represented a friend of his, and that the drawing was offered as partial payment.)
So here’s a question: knowing that Tribe did this, do we have an obligation to notify the relevant bar association?
They should consider themselves duly notified by this official blog post.
This was my immediate reaction, as well. It’s not clear from the twit whether Trump was a client or prospective client. But even revealing the identity of a prospective client seems like a line not to cross, subject to the exceptions like checking conflicts.
It doesn’t matter. Information that’s obtained via the attorney/client relationship, even if only a prospective client, is still every bit as confidential as any other client.
Why assume that Tribe was trying to subtlety harm Trump with this tweet? “…Trump phoned me for legal advice…” struck me as a humble brag: “Look at me! Even presidential candidates call me for advice.” Seems to me he was simply puffing the Tribe brand.
He could have accomplished the brag without suggesting he had secrets that needed to be revealed.
Partisanship trumps (!) everything for certain people, including, apparently, Professor Tribe.
I remember when the Clinton impeachment mess was occurring. At that time, the go-to guy in the media for Constitutional issues was Mr. Tribe. I noticed he was strangely absent from the TV and other media throughout this period. I went back and looked at what he had to say about impeachment in his treatise “American Constitutional Law”.
Suffice it to say, it would have been very damaging to his side had he been questioned about it.
And the world turns.
Some people just need to be in the spotlight, RPC 1.6 be damned.
Seems to share a trait with Lawyer/cow puncher David Martin of Willingham fame. It ain’t counting cows.
It’s very clear he was bragging or trying to stir up trouble. In PA, the relevant Rules of Professional Conduct state:
Rule 1.6. Confidentiality of Information.
…
(d) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.
(e) The duty not to reveal information relating to representation of a client continues after the client-lawyer relationship has terminated.
You might note that MA rule (1.6) that applies to Tribe is linked in the post. Since he’s not in PA, best to use the rule that applies.
Did note that, SHG. Wish MA had PA rules – PA is more level-headed
I’m not a fan of the model rules either, so I agree with you.
Here you go, the Rated G version.
Laurence the “decider”!
https://mobile.twitter.com/tribelaw/status/765609670518145025
P.S. I can roll with you growning weary of my commentary, but please, please tell me there aren’t photos of you thumbing through your law library with quill pens on the desk? Not even punishing the world with your baby checks law school class photo today could excuse quill pens on
the desk.
Don’t be a quill hater.
SHG: only “disingenuous”? You must be getting soft
What could I have said that would be worse than what he wrote?
Tribe is just double-dipping. This way he gets paid by both sides, by Triump for advice and by Mzzzz Clinton for the smear.
Times are tough in academia..
Wait. What???
Twitter is where one goes for legal advice? And here I’ve been paying a lawyer for it.
What a fool I’ve been.
Also, I suck at math too.
Only if you’re a Harvard Law professor. They’re special.
Responded to D. Johnson tweet, in your defense. Johnson replied, did I not read what you wrote?
David W. Johnson
@Johnson_DavidW
Aug 17
@DorissDay @tribelaw Twitter shorthand, forced by 140, not misspelling. Did you read his insult? Guess not. #bye
We responded, “You gssd wrng,” plus a few other choice comments in disguise, filling up the remainder of the 140. Yea, he blocked us too,… pronto.
Guess he does not believe in the 1st Amendment all that much? What a wussy! He’d never make it in the trenches. Stay in the Ivory Tower Johnson, that’s where you belong. Teach those kids what a great judicial system we have, about which you have no first-hand experience. Pitiful you.
And Tribe is a sheep in wolf’s clothing, looking out for his own self-interest. Or did we get it backwards?
You white-knighted me? Oy. Thank you, Bill. That was very kind of you.
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Just a comment on modern jargon. A single message on Twitter is a tweet, not a twit. The latter is a direct reference to Tribe.
Thank you for explaining twitter to me.
What if the first line of Tribe’s notes says, “I told Trump I would not represent him and that our conservation would not be confidential.” Then he continues taking notes and throughout states, “I keep interrupting Trump to remind him that this conversation isn’t confidential.”
In real life, that’s surely not the situation. But it *could be* the situation, in which case Tribe would have to do serious thinking as to whether that relieved him of his duty of confidentiality.
What if Trump was a space alien?
That would explain a lot of things.