Lawrence Tribe and Donald Trump
Lawrence Tribe and Donald Trump ()

The can of worms opened with a teasing tweet from @tribelaw, the Twitter account of Harvard Law School professor Laurence Tribe.

Tribe, a frequent social media critic of Republican presidential candidate Donald Trump, disclosed that Trump had called him for legal advice 20 years ago. Saying he kept his notes from the call and implying he might release them, the constitutional law scholar mused whether his discussion with Trump in 1996 would fall under the attorney-client privilege. (Tribe’s tweet came in response to Democratic consultant Bob Shrum, who called Trump a blowhard — a charge with which Tribe appears to agree.)

The tweet was catnip to Twitter’s wide-ranging legal audience.

Some wondered if Tribe was jockeying for a judicial appointment from a future President Hillary Clinton. Others cursed him or at least challenged his grasp of the law. A parade of posters, many identified as lawyers in their bios, focused on the privilege question. Are Tribe’s notes protected or not? Did it violate the bar’s ethical guidelines even to disclose that the conversation took place?

The citations flew. A few Twitter users pointed to specific case precedent. Others supplied American Bar Association ethical rules.

A lawyer shall not reveal information about representation of a client unless the client consents, one guideline says. A lawyer shouldn’t reveal past clients or use that relationship to hurt a client, according to another rule. Disclosure is a no-no, even when no formal client relationship exists, a third bar rule says.

“You know this,” one Twitter respondent wrote to Tribe.

Tribe fired back in four follow-up tweets:

Did Tribe’s responses settle the issue?

We asked a corporate law partner who specializes in attorney-client privilege and legal ethics for answers. Jon Monson, a partner at Cable Huston in Oregon, said he thought Tribe conflated two separate issues. Attorney-client privilege, in this situation, likely doesn’t apply, because that confidentiality privilege exists only when courts ask for evidence or testimony.

The ethical issue is the primary question here, Monson said. “It’s much broader than attorney-client privilege,” he said. “You have an ethical duty not only to your actual client but to your prospective client not to disclose your representation.”

Some of this depends on the exact conversation and its circumstance. But Monson, a political independent who said he doesn’t support Trump for president, added that there’s not much gray area in the legal profession’s ethical code.

Tribe responded late Wednesday to a request for comment on the debate his tweet unleashed. The whole episode, he said, was a “tempest in a very small teapot.”

Here is his statement in full:

“The tweet I sent about Mr. Trump having sought my legal advice 20 years ago breached no confidence and violated no privilege. I did wonder whether disclosing my notes of that call would be improper, decided that it wouldn’t be, but concluded that I wouldn’t disclose the notes in any event.

People who doubt the propriety of my even having mentioned that he sought my counsel assume that the fact of his call was some kind of secret. But I have no reason to doubt that he let others know that he was calling me. It was nothing to be ashamed about.

In any event, I have never revealed the substantive topic of his inquiry, never said whether 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 for what the call might have been about, in 1996, Donald Trump turned 50, sold the Grand Hyatt Hotel in New York City, opened the Trump International Hotel and Tower, took over the Miss Universe pageant and was at the halfway point of his second marriage, to Marla Maples. He, his organization and properties were named defendants in about 10 federal civil cases that year.