Tribe Finds His Shovel: Dig, Larry, Dig

After essentially universal condemnation for his politically-motivated ethical violation, Harvard Law School constitutional law professor, Laurence Tribe, has decided to violate the First Rule of Holes in his effort to pretend he didn’t.  His initial effort, on the twitters, was this “childish” attempt to double down:

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.

And in response to the tsunami of twits in response to Tribe’s very public effort to smear Trump, he offered this bit of absurdity:

You must think just seeking legal advice makes someone look guilty of wrongdoing. What about the rule of law? Crazy!

What about the rule of law, Larry? Glad you brought that up, as did Jacob Gershman at the WSJ Lawblog, who sent Tribe an email asking for an explanation for his highly public revelations. Tribe took his time responding, such that he offered nothing in response in a sufficiently timely manner to get it into Jacob’s initial post, but finally emailed his “defense.”

Mind you, this is not only coming from a Harvard law prof, but someone who has argued 35 cases before the Supremes, and who is under universal attack for his conduct, regardless of politics. Tribe’s best defense, which will be parsed line by line:

The tweet I sent about Mr. Trump having sought my legal advice 20 years ago breached no confidence and violated no privilege.

It violated no privilege because it’s an inapplicable legal concept, as both ethics lawprof Michael Krauss and I made clear. One would have expected Tribe to have grasped that privilege is evidentiary, while confidence is ethical. Obviously not. But his twit breached no confidence because?  Tribe offers nothing. It didn’t because Tribe says so, which is eerily reminiscent of another denial.

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.

Seriously, Larry? You admit to recognizing at least a question of impropriety, as if there is any doubt whatsoever, so you raised it in a twit to “help [you] think the issue through”? Is that really where Harvard law profs turn to crowdsource their ethical violations, among the vast array of legal scholars on the twitters?

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.

As Krauss notes, there is the “space alien” defense, that maybe Trump, in some bizarre twist, announced to the world 20 years ago that he was turning to Tribe for advice, thus making this consultation public knowledge. It’s a million to one shot, even for Trump, but it could be, right? Except Tribe confesses that he has no knowledge of that being the case, and chooses to assume that the sound of hoofbeats is coming from zebras rather than horses. After all, when it doubt, deliberately violate ethics. Right, Larry? And confess to it?

Besides, the fact that he sought advice on a legal question was nothing to be ashamed about.

Whether it is or it isn’t, it’s not up to Larry Tribe to spew on the twitters. And yet Tribe put it out on social media, about a candidate whom he openly despises, for what purpose?  Oh yes, because that’s where he gets his ethical advice. Totally legit.

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.

As Paul Mirengoff explained at Powerline, this is the sort of disingenuous claim that only an academic could attempt to say with a straight face:

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.

Innuendo is often far worse than reality. It may well be that the legal advice sought was innocuous, but the suggestion, deliberately spread in as public a forum as it gets, feeds into the worst speculation. As noted, Tribe, being crafty in his deliberate action, tried to create plausible deniability. But only an idiot would buy this, “gee whiz, maybe we were chatting about the care and feeding of orchids,” but I have to publicly ponder the impropriety of making my notes about this public.  You know, we all keep notes about our innocuous conversations.

And then, Tribe delivers his coup de grâce:

That shouldn’t have raised the eyebrows it did; I guess I underestimated the cynicism that pervades some corners of the twitterverse.

It wasn’t Tribe committing an intentional violation of ethics. It wasn’t Tribe flaunting client confidences (which apparently is confused with privilege when taught at Harvard Law School). It wasn’t Tribe violating his duty of loyalty.  Nope. It’s cynicism. All the people, the lawyers, the scholars, the non-lawyers, everyone, are all just cynical.

You underestimated something, Larry. It wasn’t cynicism.

As Tribe’s conduct has now demonstrated the fears of every person who speaks with counsel may be true, that a lawyer can reveal confidential communications publicly, on friggin’ twitter no less, and offer ridiculous rationalizations to dig their way out of the hole, it’s up to Massachusetts bar counsel to address this very public, very deliberate, very unethical conduct.

If Larry Tribe’s disingenuous, childish, ridiculous excuse to smear his former client goes unpunished, then there is no reason why any client will feel secure in his discussions with an attorney. Either client confidences and the duty of loyalty matter, or they don’t. Even for Larry Tribe. Especially for Larry Tribe.

Note: The issue here is legal, not political. Political comments will not be posted.

32 thoughts on “Tribe Finds His Shovel: Dig, Larry, Dig

  1. Thomas Downing

    If you are going to be pig-headed wrong, it is possible to be so with some grace.

    “I acknowledge and respect my peers criticisms of what I have done. I stand by my actions”

    Then say no more and take you lumps.

      1. Marc Whipple

        I understand and respect your position that Tribe is too smart to have done this without due deliberation.

        However, in my experience really smart people are not significantly less vulnerable to political fervor and/or desire for attention leading them to do things which most people would have thought they were too smart to do. Add to that that the esteemed Mr. Tribe, while more successful than I will ever be, has been marinating in the same groupthink as everybody else in lawcademia for lo these many years, and I am perfectly willing to believe it didn’t occur to him that a world of hurt would befall him for doing his bit in the fight against Trumpageddon.

          1. Bruce Coulson

            Emotions can overwhelm reason, even in the best of us. “Yes, this is a bad thing to do; but it will prevent an even worse thing from happening.” And being so caught up in your emotions not to see the fallacy in that reasoning.

            1. SHG Post author

              Obviously. Which might explain why he is doing this in the first place. It doesn’t turn his ability to present a minimally cogent argument into a bowl of jello.

  2. B. McLeod

    Obviously, people who write ethics rules would not be against (or want to inhibit) social justice, and therefore, there is an implied exception to all otherwise applicable rules if the otherwise violative conduct is directed to the ends of social justice.

  3. Patrick Maupin

    You guys are too harsh. Granted, Larry’s handwriting is a bit hard to read, but his notes clearly say “Trump won’t pay me because he said I did a crap job.”

    So, yeah, Larry could release those notes and sue for non-payment and everything, but he’s not doing any of that because he’s such a sweet guy.

  4. Jay

    Let’s say for a moment that the Massachusetts bar proves more principled then I’d guess it is and disbars Tribe. Harvard disagrees, declares that Tribe didn’t do anything wrong or did it for the right reasons. Then what? We have a story big enough that it might be covered by major news outlets about the fact that lawyers can break confidence and though they’ll be disbarred, they can go right on living consequence free as a well paid professor? I’m not saying he shouldn’t be disbarred, at the very least the bar should want to wash its hands of him, but from the public’s perspective, does that make anyone feel any better about a lawyer’s ability to break confidence?

    I guess this is my long way of saying: Harvard, fire him.

    1. SHG Post author

      If there is any lesson you should have learned by now, the law is a poor mechanism to deal with the shitty things people (including lawyers and Harvard law profs) do. It can’t undo the harm.

      1. Marc Whipple

        This is why even though I love NDA, my first and best advice to any client is, “If you’re afraid of somebody knowing something, don’t tell them.”

        Or how does that other one go? “Three may keep a secret, if two are dead?”

    2. Ted Folkman

      Do you really think anything short of disbarment would show a lack of principle on the part of the SJC? There is a range of available sanctions for ethical violations, and there are much more serious violations (it seems to me) that have warranted lesser sanctions. E.g., In re Discipline of an Attorney, 392 Mass. 827 (1984) (intentional misuse of client funds without intent to deprive client of funds warrants suspension, not disbarment); In re Balliro, 453 Mass. 75 (2009) (Knowingly giving false testimony warranted suspension rather than disbarment); Matter of Shaw, 427 Mass. 764 (1998) (false testimony, false affidavit, and forgery of another lawyer’s name warranted suspension). In re Wise, 433 Mass. 80 (2000), suggests that in the absence of a showing of harm, a term suspension is the appropriate sanction for a disclosure of confidences.

      I agree with you that it was wrong for Tribe to disclose the identity of the client under Mass. R. Prof’l Conduct 1.6, but I think that disbarment would be highly unlikely. If I’m right about how more serious offenses have been punished, then you might say that disbarment would be unprincipled, i.e., would be a departure from precedent motivated by political considerations.

      1. SHG Post author

        Wow, Ted. You’re a fascinating guy. Thanks for the cites, because you couldn’t have just stopped at your second sentence and not been a pointless tool and a crashing bore.

        1. Ted Folkman

          The last time I commented, you suggested my comment was unprincipled and based on my political leanings. I thought this time I would include some, you know, law to avoid a similar response. I guess it’s a Catch-22 with you. Your site, your rules, of course, but really!

          1. SHG Post author

            Suggesting (to Jay, who’s a lawyer, even though that might not be obvious) that there are lesser alternatives to disbarment really isn’t politically controversial, is it? It’s just not hard to comment, unless you’re only point is to try to play gotcha and need to prove you’re right and someone else is wrong. Even so, brief, sound reasoning would make a great alternative to, say, no reasoning or string cites.

          2. Myles

            The irony is that while your comment is brutally boring, it doesn’t prove your point. More importantly, who cares?

            1. SHG Post author

              What? You don’t think it’s important to argue over the scope of punishment before there’s a grievance? This is the internet.

    3. the other rob

      Should that all come to pass, the rational response would be for the public to restrict themselves to hiring lawyers whose sole (or at least overwhelmingly primary) business is advocacy, rather than moonlighting lawprofs, etc.

      In the unlikely event that the general public responded rationally, en masse, that might be a good thing.

  5. Norahc

    Maybe this is all part of Tribe’s initial plan. Create enough of a controversy that he could feel justified in releasing the notes. All the while publicly claiming he didn’t want to, but was forced to in an effort to settle the issue.

  6. John Barleycorn

    It’s not Laurence’s fault. He was born with one of those chester-the-ethics-molester smiles that was destined to eventually assesorize itself with a trench coat while unwittingly competing with his own ankles and sporadic chest hairs for attention.

    P.S. Wait until you see who I signed to play the part of Dean Elena. The quill pens that the Smithsonian doesn’t scoop up are sure to go for at least 75K a pop at auction now.

  7. losingtrader

    Mind you, this is not only coming from a Harvard law prof, but someone who has argued 35 cases before the Supremes

    Ah, now we know it’s just jealousy on your part

  8. KP

    “He often expresses pride in seeking expert counsel.”

    ..and now we know that Trump moved on then and didn’t have Tribe represent him.

    1. Patrick Maupin

      According to USA Today, Trump and his organizations have been involved in more than 3500 legal actions. Even Trump probably can’t remember whether he “moved on and didn’t have Tribe represent him.”

  9. Jardinero1

    There is actually more than one permutation to consider from Prof Tribe’s tweets. The author and the commenters take Mr Tribe’s statements at face value. But what if Tribe is tweeting a bald faced lie? What are the ethical ramifications of that?

    “This is a very complicated case, Maude. You know, a lotta ins, a lotta outs, a lotta what-have-yous. And, uh, a lotta strands to keep in my head, man. Lotta strands in old Duder’s head.” – The Dude

    1. SHG Post author

      That’s possible (and would violate an entirely different rule), but without any factual basis to accuse Tribe of lying, I wouldn’t assume he was being untruthful.

  10. Pingback: “Tribe Finds His Shovel: Dig, Larry, Dig” — Write of Center

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