Maybe you helped Donald Trump close a deal on a New Jersey shopping mall. Or maybe he consulted you, way back when, for some legal advice. Now he's running for president and you want to speak out -- without revealing anything too confidential, of course. Can you?
Of course, for the vast majority of us, this is simply a hypothetical. But for some lawyers, it's a very real question -- and some lawyers have started talking publicly about their time with Trump, raising very real questions about the ethics behind discussing former clients, even when you don't reveal any non-public information.
Tell Alls and Tweets
"Donald Trump seems to be taxing lawyers' abilities to stay quiet about their past representation of him," as Lisa Needham points out on Lawyerist. To wit: Thomas Wells, who recently recounted his time working with Trump on that New Jersey mall deal. In case you're wondering about Wells' angle, the piece was titled "Donald Trump Hired Me as an Attorney. Please Don't Support Him for President."
But Wells' Trump-talking has some prestigious company. Harvard Law Professor Laurence Tribe recently tweeted out some information regarding his own dealings with Trump, leading some to wonder whether he, too, had crossed a line.
Confidentiality and Your Least Favorite Clients
All of this has led to a very public debate, as Needham notes, about what lawyers can and cannot reveal about their past relationships with clients, even when those "revelations" are limited to already public information.
Technically speaking, of course, there are rules governing such disclosures. ABA Model Rule 1.6 allows attorneys to reveal confidential information in certain, limited circumstances. Rule 1.9 prohibits using information relating to past representation to the disadvantage of former clients, though that rule distinguishes between information that is "publicly available" and that which is "generally known." The California Bar recently went even further, finding that sharing information about a former client that is public but embarrassing or damaging constitutes a violation of confidentiality.
But when it comes to Trump gossip, the question isn't just what you can do, but what you should do. Needham writes:
In becoming lawyers, we've already signed on to greater restrictions on our speech than that of non-lawyers. That's a legal and regulatory obligation. However, we also signed on, implicitly and explicitly, to the notion that the client comes first, and that's what is implicated here.
Tribe, though, doesn't seem to have too many regrets about his comments on Trump. Professor Tribe says he has determined that he could talk about his Trump notes, but had decided against it.