Confidentiality, Attorneys and Prospective Clients

Mark Rubin

On August 17, 2014 I posted Professional Responsibility; Confidentiality. Confidentiality represents a core part of the attorney-client relationship. Too often, unfortunately, we—yes, attorneys—ignore it or don’t understand it.

Plainly and simply: matters belong to clients, and not to their attorneys.* I work for you. The Rules of Professional Conduct and other sources set standards for me. And one of those standards—set forth in E(thical) R(ule) 1.6—tells me I can’t reveal “information relating to the representation of a client” without your consent. (There are several exceptions. They’re discussed in the 2014 piece, and not relevant here.)

“Information relating to the representation of the client” includes the very fact that an attorney-client relationship exists. Lots more, but that too. Do attorneys tell others who they represent? Sure. Should they? No, absent an ER 1.6 exception. And do clients consent to the disclosure of the existence of the attorney-client relationship? Sometimes.

Finally, ER 1.18 focuses on prospective clients. Generally, if the client and the attorney talk about the attorney representing the client, there’s a relationship. And with that relationship comes the ER 1.6 obligation not to share “information relating to the representation of the client.”

All of which brings me around to Donald J. Trump and the quest for new attorneys. Daily, commentators tell us he can’t find someone(s) to represent him. From him? “We’re good.”

Tom Buchanan. Ted Olson. Victoria Toensing and Joe DiGenova. Dan Webb. They’re all accomplished attorneys. All of them might have been Trump saviors, according to media reports. None of them represent Trump, according to their own statements or statements offered by their firms.

I’m not a naif. Celebrity rules circa 2018. Ethics rules have not mattered in “newsy” cases since OJ or before. That’s sad, for attorneys—especially top-flight people like those who, apparently, POTUS wants to hire—know better.

I’m not commenting on anyone in particular, as Internet reporting = sketchy, and I don’t want to wrongfully suggest that anyone has violated ethical rules. But, to the extent by which any attorney or law firm spokesperson says anything other than “I (we) do not represent Donald Trump,” an ethical violation seems evident.

Regular readers know I have no use Donald J. Trump. (I’m limiting my comments here because in a matter of days I will owe obligations to a law partner and others.) That said, my profession depends for its existence on its practitioners adhering to ethical principles. My brothers and sisters have no right to share with the public the fact that they told a client “No, I will not represent you.” And if anyone does brag about the fact that they turned down representing the President of the United States, shame on them (for bragging), and I hope the discipline authorities in the jurisdictions in which they are licensed deal with them appropriately.

*You are the guy who has five sexual harassment claims brought against you. Your attorney makes them go away … because the victims waited too long to bring their claims. Do you want your attorney bragging about how he made claims against you go away? Really?