That’s an easy question.
The answer is maybe, and no.
A couple of weeks ago, a real estate lawyer named Thomas M. Wells provoked a lively debate in the legal ethics community when he authored a Huffington Post piece titled “Donald Trump Hired Me As An Attorney. Please Don’t Support Him For President.” I’m proud to say that I flagged the issue for my colleagues first, in part because they unanimously detest Trump, even the tiny minority who aren’t full-blooded Democrats or progressives, and may have been blinded by that bias.
For me, the issue was crystallized by the headline. Wells’ headline (it doesn’t matter if it was really his or the site’s: as a lawyer, he is obligated to make sure that his article doesn’t breach legal ethics rules and principles, and the headline is part of his article) suggested that he had some special knowledge and authority regarding Trump because of what he had learned while representing him decades ago. The ethics rules prohibit lawyers from revealing client confidences, which are usually defined as what a lawyer learns about a client during the course of a representation that the client would not obviously want revealed to the world. Confidences can be revealed by actions, as well as words, and the headline comes very, very close to saying “I know things you don’t about Donald Trump because of what learned when I was his trusted lawyer.” What follows from that may be a reader’s conclusion that the post reflects secret information. Thus the headline made my legal ethics alarms sound.
Wells has the same right as you or I to register a public opinion about his former (or current, for that matter ) client, as long as the opinion doesn’t interfere with his representation. Lawyers do not give up free speech right by being lawyers. That’s where the “maybe” comes from. There is strong disagreement in the profession about whether the answer to “Is this unethical?” should be an outright yes. The status of loyalty among the legal ethics values hierarchy is as hotly contested now as it ever has been. If a lawyer wants to attack a former client in a matter unrelated to the representation and no confidences are revealed in the process, is that a legal ethics breach? If it is, it would be a very tough one to prosecute. I think it’s a general ethics breach, as in wrong and unprofessional. It is disloyal, and clients should be able to trust their lawyers not to come back years later, after a client let the lawyer see all of his or her warts, and say, “This guy’s an asshole.” It undermines the strength of the public’s trust in the profession.
The legal ethics issue is confidentiality. In addition to the implications of the headline, Wells uses two direct quotes from Trump he heard during the representation to bolster his conclusions about Trump’s character. They are embarrassing quotes, and I believe covered by the duty of confidentiality: it was unethical, and unethical under the rules, to reveal them for any purpose, but especially in this context. Even then, it’s a weak violation, since they are objectively less damning than stuff Trump says almost every day. If Wells defended himself by arguing that he assumed the remarks quoted wouldn’t bother or damage Trump since he has been quoted in the same vein many times, it would be hard to rebut him. Another rule prohibits a lawyer from using confidential information “to the detriment of the client.” Is that what Wells did, what he was trying to do, or what he really didn’t do, since the rest of the post doesn’t rely on those quotes?
There is nothing in Wells’ attack on Trump that hasn’t been said before. All of his points about how unqualified and unfit Trump is for the Presidency are based on public information, and there was really nothing novel enough or incisive enough to make his submission to HuffPo publishable, except for the fact that Wells was once Trump’s lawyer, which gave it extra credibility in the eyes of some readers.
Donald Trump’s ex-lawyer could have attacked his former client in a post, though I wouldn’t do it, and it does harm the profession’s relationship with the public when lawyers turn on them like that. Announcing that he was Trump’s lawyer, however crossed the legal ethics line, and the use of confidential quotes made during the representation crossed that line a little bit more.
There is absolutely no chance at all that Wells will face bar discipline for this, or even an investigation. The actual quotes are arguably superfluous to the article, and contain no secret “information.” If it is a violation at all, to quote another ethics expert, it’s a “razor-thin” one.
The other reason nothing will happen to Wells is that virtually all lawyers agree with everything he said. That shouldn’t matter in deciding what is ethical legal conduct toward a former client, but with this former client, it does.