President Donald Trump lashed out at the leaking of the questions that Special Counsel Robert Mueller wants to ask him in an interview as “so disgraceful.” In the meantime, various news organizations (including Fox News) pointed fingers at former counsel John Dowd. Since the New York Times said that the leak did not come from “current counsel,” Dowd instantly became the leading suspect. Dowd however has denied the allegations and maintained “I was not the source.”
Dowd fit the profile for two reasons. First, the motivation of the leak seemed most likely to be scuttle the interview. You don’t poison a well that you expect to drink from. Dowd reportedly resigned after losing an internal struggle to block the interview as against Trump’s best interest. Second, if the leak came from former counsel, the list is limited (though ruling out current counsel would not rule out non-counsel).
If the leak was the work of the President’s current or former counsel, there could be a major ethical breach if Trump did not approve the release. This is attorney-client material prepared by Trump’s legal team. It would constitute a violation under ethical rules. Rule 1.6 does not allow for such a unilateral action:
Rules of Professional Conduct: Rule 1.6–Confidentiality of Information
- (a) Except when permitted under paragraph (c), (d), or (e), a lawyer shall not knowingly:
- (1) reveal a confidence or secret of the lawyer’s client;
(2) use a confidence or secret of the lawyer’s client to the disadvantage of the client;
(3) use a confidence or secret of the lawyer’s client for the advantage of the lawyer or of a third person.
- (b) “Confidence” refers to information protected by the attorney-client privilege under applicable law, and “secret” refers to other information gained in the professional relationship that the client has requested be held inviolate, or the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.
- (c) A lawyer may reveal client confidences and secrets, to the extent reasonably necessary:
- (1) to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm absent disclosure of the client’s secrets or confidences by the lawyer; or
(2) to prevent the bribery or intimidation of witnesses, jurors, court officials, or other persons who are involved in proceedings before a tribunal if the lawyer reasonably believes that such acts are likely to result absent disclosure of the client’s confidences or secrets by the lawyer.
- (d) When a client has used or is using a lawyer’s services to further a crime or fraud, the lawyer may reveal client confidences and secrets, to the extent reasonably necessary:
- (1) to prevent the client from committing the crime or fraud if it is reasonably certain to result in substantial injury to the financial interests or property of another; or
(2) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of the crime or fraud.
- (e) A lawyer may use or reveal client confidences or secrets:
- (1) with the informed consent of the client;
(2) (A) when permitted by these Rules or required by law or court order; and
(B) if a government lawyer, when permitted or authorized by law;
(3) to the extent reasonably necessary to establish a defense to a criminal charge, disciplinary charge, or civil claim, formally instituted against the lawyer, based upon conduct in which the client was involved, or to the extent reasonably necessary to respond to specific allegations by the client concerning the lawyer’s representation of the client;
(4) when the lawyer has reasonable grounds for believing that a client has impliedly authorized disclosure of a confidence or secret in order to carry out the representation;
(5) to the minimum extent necessary in an action instituted by the lawyer to establish or collect the lawyer’s fee; or
(6) to the extent reasonably necessary to secure legal advice about the lawyer’s compliance with law, including these Rules.
Of course, if the leak was strategic to give the President an excuse to refuse the interview (and done with his knowledge), the President’s public statements would be knowingly false.
Even in a city that floats on leaks, this one has many confused as to the motivation and the source. If the source was a lawyer, there would be an added party of interest: the D.C. Bar.