Government

The Donald Trump Call Shouldn't Have Been Leaked (If Counsel Were Even Remotely Doing Their Jobs)

Confidentiality agreements... how do they work?

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(Photo by Evan Vucci-Pool/Getty Images)

There’s a cacophony of stupid out there calling for Georgia Secretary of State Brad Raffensperger to be arrested, presumably, being the source of the stunning call published by the Washington Post and Atlanta Journal-Constitution where a lame duck president of the United States leaned on state officials to interfere in an election to “find” him the votes he would need to win. We’ve already dispensed with the idea that it was an illegal act of wiretapping (it wasn’t) and that settlement negotiations are privileged (they aren’t), but that doesn’t mean this conversation had to end up in the papers.

And the people responsible for this public firestorm are Donald Trump’s legal counsel.

It’s a stretch to describe this conversation as a settlement talk — the transcript reads much more like a meet-and-confer to deal with a laundry list of discovery requests — but that’s not really the point. Cleta Mitchell of Foley & Lardner took the President of the United States on a phone call where he could make potentially embarrassing statements about repeatedly debunked conspiracy theories at best and make explicit calls for election fraud at worst and didn’t lay the groundwork by getting a confidentiality agreement?

Just because the conversation wasn’t confidential by operation of law — or “Man Code” — doesn’t mean it couldn’t have been confidential. This is a client who used to have every fling sign an NDA, how do lawyers walk him into a legal and political minefield without securing a confidentiality agreement first? Maybe Michael Cohen really was the brains behind the Trump legal universe all along. A Biglaw lawyer should have thought of this from jump!

Assuming this was a Biglaw effort, of course. For its part, Foley & Lardner is trying to distance itself from Mitchell, saying “[a]ny involvement [by Cleta Mitchell] in this matter is solely in his or her capacity as a private citizen.”

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Not sure that firms get to disavow partners running side gigs that easily. From ethical canons to malpractice insurance, there’s a whole litany of obligations that firms must shoulder based on the actions of any of their attorneys. It’s why one of the first things a firm tells first-year associates is that they can’t go around offering legal advice to their friends and family because they’re in a firm now. And it’s hard to sell the contents of this transcript as anything but a member of their firm actively providing legal advice. For example:

Germany: We chose Cobb County because that was the only county where there’s been any evidence submitted that the signature verification was not properly done.

Trump: No, but I told you. We’re not, we’re not saying that.

Mitchell: We did say that.

That certainly sounds like someone preparing the filings.

But even if Mitchell wasn’t backed by the army of cautious senior associates who should have pointed out the need for some kind of confidentiality agreement, it should be lawyering 101.

So if Trump and his allies want to blame anyone for this tape getting out and hurting the president, they may want to blame their own counsel.

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Or maybe they might want to stop saying embarrassing and potentially criminal stuff out loud in the first place. But failing that, definitely blame the lawyers.

Earlier: Donald Trump Drags Biglaw Firm Into Middle Of Election Interference Effort

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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