It isn’t often that you see a relatively technical debate about legal ethics and what information lawyers may reveal about clients playing out in real time in the non-legal press, but that’s what we have happening right now.
Donald Trump seems to be taxing lawyers’ abilities to stay quiet about their past representation of him, perhaps because getting in on the Trump-related publicity is just too much to resist. First, there was Thomas Wells, who worked for Trump on a business deal back in 1987 and wrote a sort of tell-all about it for Huffington Post. Most of the information in the piece was publicly available data such as Trump being a tough-talker and his businesses going bankrupt, but it kicked off a debate as to whether it was even permissible for Wells to share that he’d been retained by the Donald. Next, Laurence Tribe, who should know better, tweeted that Trump had sought his advice back in 1996, and he was debating whether his notes about the conversation were privileged. Tribe eventually decided that he could have released the notes without breaking confidentiality obligations but had decided not to do so. He also took a more pugnacious line in defending having revealed that Trump sought him out, positing that Trump probably told other people he was reaching out to Tribe, so it wasn’t a secret.
In the middle of all this (though, naturally, not sparked by this) the State Bar of California issued an opinion saying, essentially, that a lawyer is obliged to keep secret even that which is already public.
A lawyer may not disclose his client’s secrets, which include not only confidential information communicated between the client and the lawyer, but also publicly available information that the lawyer obtained during the professional relationship which the client has requested to be kept secret or the disclosure of which is likely to be embarrassing or detrimental to the client. Even after termination of the attorney-client relationship, the lawyer may not disclose potentially embarrassing or detrimental information about the former client if that information was acquired by virtue of the lawyer’s prior representation.
Over at Socially Awkward, Josh King breaks down why this view feels terrible for lawyers but great for clients.
From the perspective of a client, I like that: I don’t want my lawyers talking about stuff they’ve worked on for me, even if it IS public.[…]
And yet . . . should this concept of “public confidentiality” really exist on pain of sanctions? I’m all for calling such loose-lipped attorneys out as being bad for clients, for not exercising their obligation of loyalty to the fullest, etc., but should they be legally prohibited from talking about stuff that every other member of the public is free to discuss?
King frames this as an area where attorney regulation runs into a First Amendment problem (which is. of course, a long and storied battle). That’s a correct assessment, and it isn’t as if the profession doesn’t have a bad habit of overreaching in its attempts to restrict attorney advertising and commercial speech. However, it isn’t quite the right assessment. 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.
When we argue about whether and how attorneys are allowed to advertise, we aren’t just arguing about whether we get to say whatever we want. When we are arguing about how much lawyers should participate in a literal marketplace and a marketplace of ideas–how much information can they give potential clients or use to woo potential clients. Theoretically, consumers have more access to information about attorneys and can make more informed choices, which is a benefit that flows both towards lawyers and would-be clients.
The notion of revealing information about a client—even if that information is available elsewhere—doesn’t do anything at all for a client or a potential client.1 It just allows the lawyer to shoot their mouth off. Under Model Rule 1.6, lawyers are already afforded a number of occasions when we can reveal information about a client, including preventing that client from committing both violent and financial crimes or to defend themselves in a controversy between lawyer and client. In other words, we already have the freedom to use client information, public or otherwise, to defend ourselves or to stop bad things from happening. To say that a lawyer needs to be free to speak of matters in excess of those exceptions just means getting a pass to talk about a client because you want to.
Ultimately, the question here isn’t what you can do, but what you should do. Who would want to hire a lawyer that discusses past clients for no reason—or worse, because they want publicity?
That last part isn’t strictly true, in that a potential client might be actively dissuaded from using what Josh King calls a loose-lipped attorney. That said, it is reasonable to assume that attorneys who wish to overshare about their clients aren’t doing so with the end goal of losing clients. ↩