August 3, 2016 (Fault Lines) — For criminal defense lawyers, it’s our favorite piece of advice, our default, our go-to: just shut up. We write about shutting up incessantly. When we speak about representing clients it’s one of our top bullet points. We joke about clients’ dogged refusal to shut up, and we harp on the consequences and cite famous cautionary tales like Martha Stewart’s. Some of us have some version of the advice printed on our business cards, ready for clients to read aloud in rare moments of compliance: I invoke my right to remain silent and I wish to speak with my attorney.
But just as the shoemaker’s children go barefoot, lawyers often have trouble following their own advice. Perhaps we shouldn’t be surprised that a profession paid to talk has trouble shutting up. When our clients talk too much it’s often at their own expense. But when lawyers talk too much – usually out of ego and ambition – it’s at the expense of their clients, their ethics, and the profession.
This week’s example is Thomas M. Wells, a New Jersey attorney hungry for his fifteen minutes. In a column at the Huffington Post, he dishes about what it was like to represent Donald Trump in a real estate matter in the 1980s. He repeats small confidences calculated to make Trump look insubstantial and immoral, regaling his readers with Trump bragging about women and about lying to the press. Then he launches into a list of reasons Trump is unsuited to be President – he’s a liar, he has a bad temperament, and so forth.
Though Wells opens his tirade by repeating a few confidential communications, he doesn’t support his anti-Trump arguments with specific stories from his representation. But the implication and effect are inescapable: here’s a lawyer who represented Trump, who heard his confidences, who knew his secrets, telling the world that he’s dishonest and untrustworthy and egotistical and lacking in Presidential temperament. Wells conveys, and clearly means to convey, that we should credit his viewpoint because of his personal experience with Trump. The Huffington Post knows that’s the heart of the story and emphasizes it in the clickbait title: “Donald Trump Hired Me As An Attorney. Please Don’t Support Him For President.”
Wells’ bad example is regrettably common. Plenty of lawyers are willing to trade their duties of confidentiality and loyalty to seem important or knowledgeable for a few minutes. Hillary Clinton joked that her client destroyed her faith in polygraphs by passing one, thus clearly implying she knew him to be guilty; the only apparent motive to this breach of the duty of confidentiality was appearing sophisticated and witty to a reporter. Other lawyers are more aggressive in pricing their ethics. Johnny Carson’s former lawyer Henry Bushkin got a book deal and a media tour in the spotlight</a> for spilling Carson’s confidences.
The attorney-client relationship depends upon trust, particularly in criminal cases. Lawyers can’t do their jobs right when they can’t get the true facts from their clients. Getting the truth is challenging enough under normal circumstances. It’s much harder in a culture that treats the attorney-client relationship as something the lawyer can monetize later if the client gets famous. Unethical lawyers who break the duties of loyalty and confidentiality for money or prestige damage the profession, and with it the rule of law. The media is complicit when it treats a shameful betrayal of professional obligations with a shrug.
Lawyers, listen to your own advice: shut up.
Ken White, who writes about free speech and criminal justice at Popehat.com, is a criminal defense attorney and civil litigator at Brown White & Osborn LLP in Los Angeles.
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Lookin’ good, Ken
I think you’ve lost weight!
[…] helped serve his legal needs. Otherwise clients are going to lose trust in your confidentiality [Ken White, Fault Lines; Eric […]
[…] Clinton from the 1980s. In my opinion, that interview displayed an ethical lapse, one regrettably common among lawyers presented with an opportunity to promote themselves to interviewers. Clinton said […]
If I understand the concept of client-lawyer confidentiality, it applies to information shared in regards to a specific case, not casual personal conversations or observations. In what way, exactly, did Thomas Wells betray client-attorney confidentiality when he wrote of his personal experiences and observations of Donald Trump?
To put it in a different light: There exists a code of confidentiality between a doctor and his/her patient. If you had a friend who was a doctor, and in the course of conversation you mention thinking of hiring an appraiser (Mr. X) in order to get a home equity loan, and your friend (the doctor) tells you, “Well, do be careful with Mr. X. He freely told me in the office, just the other day, how the banks give him ‘a little something special’ for under-valuing homes in certain locations”, would you think, “OMG! My friend is guilty of betraying confidentiality!”?
Yes, there is such a thing as “priviledged information”, and I’m certain you are aware of the whole “fruit from the poisoned tree” concept, but I think Mr. Wells did not share anything that was not, at this point, “shocking”; it certainly does not, IMO, appear to be a breach of attorney-client confidentiaity, so I have to wonder what would be your motive for trying to make that claim?
I’m afraid you don’t understand the concept of confidentiality. Nor are you familiar with the facts involved. And your reference to “fruit of the poisonous tree” is just batshit moronic. In fact, you understand nothing whatsoever about anything involved in this post. Not even a little bit. The bad news is that you don’t get to invent your own law, make up your own facts, then spew nonsense. Sorry.
I beg to differ with you. I may not fully understand client-attorney confidentiality, given that I am not an attorney, but from both a law enforcement and medical standpoint, I completely understand what constitutes “confidentiality”. As for “the facts”, I can only go by what Thomas Wells and you presented; if there were other pertinent facts to be assessed, they should have been presented. Furthermore, if you couldn’t understand my “fruit of the poisonous tree” reference, then that is your failing, not mine. I find your response to be ill-prepared and reactionary.