Thomas M. Wells, photo from his law firm website
I’ve said before that Donald Trump is a one-man bar exam, as his candidacy seems to touch on roughly six bazillion different issues. One could easily create a law blog devoted solely to the legal issues he is involved with that come up on a daily basis — from matrimonial, to contracts, to fraud, to defamation, to torture and war crimes and more.
But today, just for kicks, I’ll tell you how he may have been inappropriately slimed. Beating up on Trump, you see, is easy pickings. But defending him from inappropriate conduct? You be the judge.
We turn, now to one of his former lawyers, and since Trump has been involved in 3,500 lawsuits, in addition to godknowshowmany banking and licensing deals, there are many of them around.
This one is about Thomas M. Wells, who was hired by Trump for a New Jersey real estate deal regarding a mall.
On July 31st, he published a nice, juicy article in the Huffington Post with this headline:
Donald Trump Hired Me As An Attorney. Please Don’t Support Him For President.
Wah? Inside scoop? Let’s read!
This was the basic background where Wells establishes his credentials to write with authority:
In 1987, when I was 35 years old and he was 41, Donald Trump hired me to be his attorney on a major northern New Jersey project, a shopping center, which like everything else, was to bear his name, Trump Centre. It was a big deal that he picked me and a high honor for me just a couple of years after I started my law firm, which is now over 30 years old. This was at a time when Trump still built things, having recently finished Trump Tower.
OK, he was one of the lawyers. But what kind of information can he possibly spill if he was Trump’s lawyer? There is, after all, the subject of client-attorney privilege.
Well, off the bat, Wells gets right to it, giving personal stories to lede into the rest of the piece. (The rest of the piece appears to be based on public information.)
First, there is this bit about bad deals, which is odd since Wells was helping him with a deal:
He seemed to me smart, business savvy, decisive. He had a very impressive office, a fancy and very big boat, an airline, a helicopter shuttle and several casinos. Within a few years, virtually all of this would be lost because of bad business decisions.
Second is this piece about Trump claiming that women wanted him:
After the initial interview, my client contact with Donald was actually not very much. One low point I do remember (actually will never forget) is a limousine ride to a meeting with the editorial board of a New Jersey newspaper in which my married client sought to regale me with the number and quality of eligible young women who in his words “want me.” I was just plain shocked and embarrassed, but I kept smiling. I wanted and needed this client happy.
And third, Wells takes on Trump’s well-known braggadocio and lust for publicity in discussing the size of his apartment and the varying press stories on just how big it is:
While I was working for Donald, various press reports had Trump and his then-wife Ivanna living in a personal apartment in the Trump Tower of 8, 16 and even 20 or 30 rooms. Genuinely curious, I once asked him how many rooms the apartment actually had. I will never forget his response to me: “However many they will print.”
Zing! The story confirms your bias against Trump, leaving you wanting to read the rest of the piece for any other juicy tidbits.
But, but, but.
Were those three pieces fair game for an attorney to discuss? Clients, after all, share all kinds of information about themselves. Lawyers often need to know what they are, so that we can represent them the best. Sometimes the information is useful, sometimes it’s garbage.
Wells is licensed in New Jersey, and that state’s Disciplinary Rules of Professional Conduct would control. In this case, it would be section 1.6 relating to confidential information. With few exceptions, “A lawyer shall not reveal information relating to representation of a client…”
Did any of these three stories relate to his representation? I think it goes against Wells. The comments were made in the course of a client meeting. The client may reasonably expect the such communications would be privileged — even if it is Donald Trump.
I’ve written before about lawyers that want to capitalize on being associated with those in the public eye, such as Lindsay Lohan, or as part of puff pieces. This stuff is almost always verboten.
It seems to be that if an individual can’t keep a secret, then representing clients may not be the right line of work.
I’ve reached out to Wells for comment and he gave this initial response:
The only references made were to conversations approximately 30 years ago, not on business or legal matters and no legal advice was sought or given in same.
There is, of course, no part of the client-attorney privilege that simply expires based on the passage of years. There is no statute of limitations with regard to confidentiality.
As to whether the information must be strictly related to “business or legal matters” or “legal advice,” that is not an easy line to draw. Clients talk, in confidence. And they deserve to know that the confidences will be kept.
Even if a client hires a lawyer to do a closing, and then volunteers in private that she killed someone 20 years ago, or that she cheated on her husband with a few dozen others, I don’t think it means the lawyer gets to blab the stories later. The stories may not be related to the subject for which the lawyer was hired, but were still uttered within the quiet bubble representation.
If you think I’m wrong, have at it in the comments.
Update: Mr. Wells gave me a further comment by email:
this conversation did not deal with a legal or business matter and no legal advice was sought or given. There are other issues in this instance as to who the actual client was, who was present etc. but that could be argued to be confidential so I will not go there.
Not a close call. Of course you’re right.
This is just one of those things a lawyer shouldn’t do. Full stop.
I suppose there’s wiggle room in terms of “information relating to the representation.” Arguably, what he revealed is not “relating to the representation,” which was the shopping center transaction.
But quibbling over whether it “related to the representation” is not a position an attorney should ever be in. When a client tells you something, even a stupid claim about how much women want them, they’re not telling you as a friend, they’re telling you as their lawyer. Maybe they like you as a person. Maybe they think you’re a wonderful human being with whom it’d be great to hang out on the weekends. They’re still telling you this as their lawyer.
As Wells said, his “client contact with Donald was actually not very much.” So every time Trump was interacting with him, it was as his lawyer.
Lord knows what gets into these lawyers’ heads that makes them want to do this.
But quibbling over whether it “related to the representation” is not a position an attorney should ever be in.
Agreed (obviously). I see the words “related to the representation” as being broader than “related to the subject of the representation.
I just love being a gadfly!!! Pray tell, what is it that this lawyer supposedly “revealed” that his client had not already thrown into the public domain all by himself? That he was smart, savvy and had helicopters and casinos that he later lost? That he felt himself to be “wanted” by very woman on the planet even though he was already married? That he was less interested in the actual number of rooms in his apartment than he was in how many rooms people thought he had? Whoa, Nellie – what a snitch!!! Sorry, E-Turk, but among all the legal issues that the Trump candidacy raises, this one is the lamest. True, it was definitely bad form for this lawyer to throw these matters into the mix, but none of it was secret, privileged or kept from public view long before he exercised his free speech rights. Of course, having the right to do something doesn’t necessarily make it the right thing to do, and so I agree that this lawyer should’t have said any of these things in support of his opinion. But bad form and lack of taste is not grounds for discipline: I doubt that any attorney disciplinary Board in New Jersey, or anywhere else in these Unites States for that matter, would take a complaint based upon these comments seriously – nor should it.
Pray tell, what is it that this lawyer supposedly “revealed” that his client had not already thrown into the public domain all by himself?
Well, we could start with this: I once asked him how many rooms the apartment actually had. I will never forget his response to me: “However many they will print.”
Merely because many people think he is a liar doesn’t mean his attorney should confirm it. (In a poll released yesterday, 35% found him trustworthy.)
And there is this part about advising him on a deal, only to later say he made bad business decisions: Within a few years, virtually all of this would be lost because of bad business decisions.
Don’t we have a duty of loyalty to our clients? If a case you were working on went south on you b/c of something the client did, wouldn’t you keep it to yourself? Even in a motion to be relieved as counsel, wouldn’t you keep secret a client’s ill-advised activities?
Sorry, but IMHO your examples just don’t cut the mustard: they are trivial, essentially inconsequential and miniscule revelation if revelations at all. What if you represented someone who you knew was an admitted deadbeat, boasting to you of his prowess in cheating people out of money. Fifteen years later your friend comes to you asking for advice since the deadbeat has asked for a loan. Are your lips sealed? I think you are reading the obligation bonds of client loyalty a tad too too broadly. Representation does not bind you to a client for life about matters not involved in, material to or intwined with your representation. You are still permitted to have and express your opinions that do not reveal otherwise known or obvious secrets, confidences or intimacies.
Fifteen years later your friend comes to you asking for advice since the deadbeat has asked for a loan. Are your lips sealed?
If you learned during a client meeting, then yes.
Even if this is a close call – and I’m not convinced of that – ties have to go to the client. Otherwise, clients will constantly be asking themselves whether a potential statement to counsel will in fact be protected or disclosed. The choice between confiding in counsel regarding matters clients would not want to see made public or not confiding in counsel at the risk of an adverse legal outcome is, I believe, exactly what the privilege is intended to avoid.
I am an attorney of thirty years experience, in Arizona. I agree with you. I would have done, and would welcome the opportunity to do, just exactly what Mr. Wells did in this instance. So my question is this: am I obliged to self-report? Forfeit my license? Find another (a)vocation?
I agree with you. I would have done, and would welcome the opportunity to do, just exactly what Mr. Wells did in this instance.
Huh? You agree with me but would have done the opposite?
That is what I said; that is what I meant. Your answer is?
Looks like small talk, chit-chat. Nothing to do with representation — and garbage that Trump’s said zillions of times. Too, Wells is safe; Trump never sues over echoing of his self-promoting lies, only to rip people off.
Looks like small talk, chit-chat. Nothing to do with representation
That is the essence of the issue: Something said during the course of representation that was not necessarily the subject of the representation.
Trump never sues over echoing of his self-promoting lies,
It isn’t an issue as to whether Trump sues or not, but whether it is right/wrong to have discussed the matters.
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It’s not attorney client privilege at issue as the main consideration.
It’s the lawyer’s duty of confidentiality.
Important to keep those straight.
The lawyer explains it right in there. The duty of confidentiality is to the client. The “client” in this case was most likely some corporate entity and that corporate entity most likely ceases to exist. Unless the disclosure is harmful or embarrassing to the corporate entity -impossible due to the entity’s present non-existence (can’t be embarrassing) and the passage of time (too much time to be harmful) – there is no violation of duty of confidentiality to the client (corporate entity). There was also no direct instruction from the client to keep it confidential which is the third method of obtaining confidentiality.l by the client other than when the lawyer should know the information is harmful or embarrassing to the client if disclosed.
As far as privilege, he is getting at the fact that there was no privilege because it was said in the presence of third parties.
Making some reasonable assumptions here about context, particularly given the lawyer’s hints about context, no privileged or confidential information of the former client was disclosed.
I don’t see the ethical problem. At all. It’s not even close.
The duty of confidentiality is to the client. The “client” in this case was most likely some corporate entity and that corporate entity most likely ceases to exist.
The corporate client, assuming there was one, was building a mall with Trump’s name on it. I don’t think you can separate the corporate from the personal in this fact pattern, regarding comments the head of the enterprise made during the representation.
There was also no direct instruction from the client to keep it confidential
Discussions are confidential unless stated otherwise.
As far as privilege, he is getting at the fact that there was no privilege because it was said in the presence of third parties.
Maybe yes, maybe no, impossible to tell, but that wouldn’t mean the lawyer should voluntarily violate his duties to his client.
Promoting one’s proximity to celebrities is not guaranteed to work out well. Does anyone remember
And does anyone remember Ostrow, outside of that context?
Ah, so now another Drumpf lawyer is tattling on Drumpf’s wife’s immigration status — which is apparently a bit murky. Is anything Drumpf touches not a bit murky?
Could it be that these lawyers fall into the bucket of service providers Drumpf likes to stiff on payment?
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I see that many are arguing this was just small talk between Trump and Wells. With that being said I do agree that any communication between the two should be considered privileged, even 30 years later. It doesn’t really matter in this instance what Trump told the public or what he wanted the public to believe. What does matter is that Trump voiced these things to his lawyer at the time and now the lawyer has made it public information.
So if your daughter comes home and announces that she’s going to marry Donald Trump, and you had done business with him and knew him to be a ghastly wife abuser and pathological liar, you would keep your mouth shut?
Because Trump wants to marry the entire country to him. Some things (opinions gathered from up close and recurrent exposure) trump professional codes of ethics.
So if your daughter comes home and announces that she’s going to marry Donald Trump, and you had done business with him and knew him to be a ghastly wife abuser and pathological liar, you would keep your mouth shut?
I have no idea who this was directed to or what it has to do with the subject of the post.