A long while ago I wrote about a lawyer’s public interview that should never have happened. Here is a lawyer’s op-ed piece that should never happened, you can read the op-ed if you haven’t already at this link at The Huffington Post. Now, because such a disclaimer seems to be in order and beneficial to some extent, I say this as someone who contributed to Senator Sanders campaign during the primary and who has contributed to Secretary of State Clinton’s campaign more recently, but here is a lawyer publicly saying everything people who think Trump’s candidacy represents an existential threat to democracy should want to hear injected into our current political discourse — but the introductory portions of it, the things that the author attempts to use to give it credence and relevance as someone with real insight into the person being criticized, demonstrate that, at least in this version, the piece should never have been written at all.
Taken at face value, the writer is a former lawyer of Trump’s and he appears to be licensed in a jurisdiction, New Jersey, that (like most jurisdictions) provides for a continuing obligation of confidentiality owed to former clients. New Jersey’s RPC 1.9(c) provides:
(c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a client.
Thus, the first few paragraphs of the piece set this lawyer up for trouble in terms of allegations that what he is doing — and to some extent what he clearly does (the limo conversation and one or two other conversations) — is breaching his duty of confidentiality to a former client. The statements about things his former client said to him are certain being used to the former client’s disadvantage and certainly are not generally known pieces of information.
This lawyer needed both a good editor and a good legal adviser who could have told him that with some massaging and editing at the outset he could have still written the lengthy 4,000 words or so about the 20 problems with a lead in that acknowledged that he was obligated by ethics rules not to disclose anything he learned during the representation and that everything he is writing about is information he worked hard to track down through publicly-available sources but ….
Actually, once you remove that piece of it – there is no more need for this gentleman’s voice in the public discourse (other than the stakes involved in the electoral process). It particularly seems unwise for this lawyer to have taken on this risk, particularly given the well-known litigious nature of the target of the column — who actually, for example, had a lawyer send a letter to Trump’s co-author of The Art of the Deal demanding a return of all royalties now that the co-author is speaking out negatively about Trump despite the fact that book came out almost 30 years ago.
California (where this gentleman is not licensed) just put out a formal ethics opinion driving home the point that its confidentiality requirements adhere even to information that has been publicly disclosed. Worth noting is even under that opinion, California would appear to signal that the rest of this piece, the just-one-more-voice detailing criticisms from publicly-available sources would not be a violation of duties to the former client, as the California opinion explains about the lawyer’s perhaps unnecessary and unwise but not unethical disclosures about a former client’s arrest for DUI at a time after the representation had ceased. The New Jersey Supreme Court, earlier this month, refrained from disciplining a NJ lawyer over the disclosure of confidential facts of a current client representation that were already public, so maybe this guy will get a pass?