Woodward's 'FEAR': On Dowd's seeming breach of attorney-client privilege/ethics (or is it?)

[hlthe2b]

Laurence Tribe pointed to this article. I'm pulling out just the parts on Dowd, who seemed to me inexplicably crossing the line in the book.


https://verdict.justia.com/2018/09/17/fear-itself-what-bob-woodward-finds-in-trumps-crazytown-and-what-he-doesnt-look-for

What Woodward may not realize is that for Dowd, this not an indictment. It’s Trump’s defense.

As always, we must ask ourselves, why is John Dowd even talking to Bob Woodward, let alone telling him that his client is a habitual liar? After all, Dowd is not just another government official with a reputation to burnish. He is, or at least was, the president’s private defense attorney. As such, he owes his client a duty of loyalty and confidentiality.

Under Rule 1.6(a) of the DC Bar’s Rules of Professional Conduct, a lawyer may not “reveal a confidence or secret of the lawyer’s client” or “use a confidence or secret of the lawyer’s client to the disadvantage of the client.” A “secret” includes information gained in the professional relationship “the disclosure of which would be embarrassing, or would be likely to be detrimental, to the client.” In normal circumstances, an admission that “my client lies all the time” would be both embarrassing and detrimental. There are only a handful of exceptions to the confidentiality rule, such as when the client has been using the lawyer’s services to “further a crime or a fraud.” Since Dowd maintains that Trump is innocent of any crime or fraud, let alone with Dowd as his instrument, this exception would not apply. Rule 1.6 also permits disclosure when the client has granted “informed consent.” So, it’s conceivable that Trump himself has approved this disclosure as an actual defense strategy. Another possibility, albeit a riskier one, is that Dowd believes he is taking “protective action” for a client with “diminished capacity” under Rule 1.14, in which case a “lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.” Unless an exception to the confidentiality rule applies—and these are the only obvious candidates—neither Dowd nor anyone acting at his direction could have ethically given Woodward an account of Trump’s unreliability as a witness.

And that’s the real tell here. Dowd must not be so convinced of his client’s innocence as he proclaims. He is, in fact, laying the groundwork for a final line of defense: that Trump’s own statements are not reliable evidence of obstruction of justice or other crimes. Because Trump lies impulsively, without forethought or purpose, we should attach no importance to his words, even if they seem to condone or command illegal acts. And if Trump is just an instinctively combative man, as prone to yell at his television set as at the attorney general, should we really take his rantings seriously as crimes?

A smart lawyer like Dowd will only make his client look a fool if it will help him avoid looking like a criminal. After all, Trump will not be forced from office based on general incompetence, mendacity, or rashness. However shocking these qualities may be, we have already lived with them for 21 months. Only proof of “Treason, Bribery or other high Crimes and Misdemeanors,” as required by the Constitution, can realistically compel Congress to remove Trump from the presidency. If Robert Mueller, or the next Congress, produces such evidence, then we can expect a last-ditch defense along the lines previewed by Dowd and ratified by Woodward: the president is so erratic in his behavior, and so unreliable as a witness, that he can appear to implicate himself in non-existent crimes.

The alternative explanation—that the president is a serial liar, but is also guilty of serious felonies, knows it, and acts accordingly—is much simpler. And yet Woodward not only fails to reach that conclusion, he declines (as yet) to even consider it as a possibility. We can only wonder how an investigative journalist of his pedigree missed the story. With Manafort now pleading guilty and cooperating with Mueller’s investigation, Woodward may finally be asking himself the same question.

--more--

[The Velveteen Ocelot]

1. I think Woodward was simply reporting what people were telling him,

and not trying to draw conclusions - leaving those to the reader.

[hlthe2b]

2. yes.. agree. His critique of Woodward is not what I found interesting, but rather the Dowd issue.

[shanny]

3. Interesting.

But would also imply that this one of preznit's lawyers is more competent than any of the others have demonstrated: what are the odds?

[MaryMagdaline]

4. I don't approve of Dowd's telling anyone his client is a liar

Unless it was to another lawyer also representing trump or to trump himself. Even scum bags get to have lawyers.

[hlthe2b]

5. which makes the possible (pre-approval by Trump or the other possibilities discussed) all the more

intriguing, IMO. Dowd had to know he was coming perilously close to disbarment level complaint for this kind of thing. There has to be an explanation.

[MaryMagdaline]

6. Agree

[33taw]

7. He knew the consequences and risked them.