This is like an easy question on the MPRE (for you non-lawyers out there, the Multistate Professional Responsibility Exam is the ethics bar exams that all lawyers must take). “Does it count as violating attorney-client privilege if you are overheard saying something you shouldn’t have said?” Uh, yeah. Not maybe, not sometimes. Yes.
These two clowns must have been sick the day they taught ethics in ethics class, though. Yesterday, uber-recognizable Trump lawyers Ty Cobb and John Dowd relaxed over a nice meal at BLT Steak – a restaurant conveniently located near the White House and right next door to the Washington Bureau of The New York Times. Sitting within earshot was Kenneth Vogel, a former Politico reporter and current Times reporter. Vogel heard Cobb and Dowd talk about a whole load of Trump-Russia-Kushner stuff, and then published a corresponding article about it.
Vogel also tweeted out a picture:
Here’s a photo of Ty Cobb & John Dowd casually & loudly discussing details of Russia investigation at @BLTSteakDC while I sat at next table. pic.twitter.com/RfX9JLJ0Te
— Kenneth P. Vogel (@kenvogel) September 18, 2017
Shortly after the story broke, noted legal scholar Rick Hasen remarked the following:
This doesn’t seem like a crazy explanation for Ty Cobb’s behavior. https://t.co/AXn1Ev9Ipk
— Rick Hasen (@rickhasen) September 18, 2017
Professor Hasen could absolutely be right. It’s entirely possible that Cobb and Dowd wanted to leak this information and thought they could get away with this little steakhouse charade. But when it comes to their legal responsibilities, intent is irrelevant; even an accidental breach of confidentiality is as big an ethics violation as a purposeful one.
The American Bar Association and all fifty states have already anticipated the problem of a loudmouth lawyer yapping in a crowded restaurant (although, if we’re being honest, it probably didn’t fully anticipate counsel for the president of the United States purposely yapping about treason in earshot of investigative reporters). The ABA rule reads as follows:
“A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”
If the information Cobb and Dowd’s “leaked” was real, we’ve got a major ethics violation here. Whether Cobb and Dowd were acting purposefully or simply carelessly is only relevant as to the degree of wrongdoing. I’ll leave that one up to the bar ethics committee. When it’s done investigating Trump’s other lawyers, it can sort out what’s happening with these two guys.
This is an opinion piece. The views expressed in this article are those of just the author.
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