Is there anyone concerned at the ugly turn the election has taken with the release of a few pages of Donald Trump’s taxes from 1995? The ugliness is not that Trump’s taxes have been revealed, per se, but that it was done, in part it appears, by getting an elderly lawyer to violate his duty of confidentiality to his client. One might say that Trump deserves what he gets. But in this age of ever-eroding privacy, it is alarming when the official rules meant to guard privacy come under assault.
When first asked by the New York Times, Trump’s one-time tax-man Jack Mitnick gave the right answer: “he could not divulge details of Mr. Trump’s finances without Mr. Trump’s consent.” But the clever reporters got him talking on the more general topic of “Mr. Trump’s approaches to taxes” and managed to steer him into confirming that the few Xeroxed pages in their possession were copies of bona fide Trump tax documents. Before long Mr. Mitnick was explaining how he filled out the forms.
Let’s assume the Times representation of its conversation is accurate. If so, it is no brief for the Donald to point out that Mr. Mitnick has committed a grievous violation of legal and professional ethics. The rules are as expansive as they are simple. George Mason University law professor Terrence Chorvat tells THE WEEKLY STANDARD that, while he is not privvy to “all the facts involved in the situation… attorneys should not be discussing work they performed for a client with newspapers.”
The duty of confidentiality is like its sister rule, the lawyer-client privilege, says NYU law professor Stephen Gillers: Both rules “last forever, even after the death of the client.” Which means not only would Mr. Mitnick be in the wrong giving up information about Donald Trump’s taxes, he is prohibited from saying anything even about Fred Trump’s taxes (on which he also worked).
And for those who might suggest that it’s okay to point reporters to where they might find information (including stabbing fingers at documents reporters already have and are eager to have authenticated), Red Flags: A Lawyer’s Handbook on Legal Ethics insists that “Confidential information is not just secrets or stuff that is embarrassing It’s everything learned in the course of a representation.” And that “everything” means “you may not disclose this information even though anyone could ‘look it up.'”
Cindy Hockenberry is director of education and research at the National Association of Tax Professionals. She’s astonished that any tax attorney would discuss in any way a client’s returns, even something as pedestrian and widely known as a client’s address. There’s the association’s Code of Ethics, which requires “I will observe the client’s right to privacy and confidentiality,” but beyond that there are federal statutes involved—among them, 26 U.S. Code, Section 7216, which makes it a misdemeanor for anyone in the business of preparing taxes returns to disclose “any information furnished to him for, or in connection with, the preparation of any such return.”
There are also state laws involving lawyers’ obligations of confidentiality, most of which track the American Bar Association’s Model Rules of Professional Responsibility, Rule 1.6, on the “Confidentiality of Information.” Section (a) of that rule requires “A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.” Section (b) provides exceptions (none of which are applicable to the Trump tax situation). And section (c) makes it unequivocal: “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.”
There could be a question of whether Mr. Mitnick was acting as a lawyer or as an accountant in the work on Trump’s taxes. But Guinevere Moore, a partner practicing tax law at Johnson/Moore in Chicago, tells THE WEEKLY STANDARD that the web of rules involving tax professionals means that accountants and preparers have the same sort of confidentiality requirements that attorneys do in the practice of law.
Jack Mitnick is still listed as being “Of Counsel” on the website of the New York law firm Jaspan Schlesinger. Asked about the violation of Trump’s confidentiality, managing partner Steven R. Schlesinger responded that “He is not with the firm. He retired probably over 5 years ago and has not been on a current version of our website since his retirement.” Asked whether retirement retires the obligation of confidentiality, Mr. Schlesinger emphasized “We have no comment except to say he is not with the firm and has not been for a while.”
Of course it’s always possible the New York Times has misrepresented their conversation with Mr. Mitnick. Or perhaps it’s just a case of reporters wheedling and cajoling an elderly lawyer into speaking about things he never would have said a word about before his dotage.
Still, it’s a measure of how this election has corrupted everything and everyone it has touched that 1.) a lawyer appears to have violated one of the core ethical requirements fundamental to the functioning of our legal system, and 2.) no one is particularly bothered by it. To have a sense of the professional betrayal involved, just imagine that some enterprising reporters find an aged Arkansas doctor who once treated Hillary Clinton. Let’s imagine they get him to speak out of school about some condition or treatment she may have had. Wouldn’t we be appalled? Or at least shouldn’t we?
Even a scoundrel like Donald Trump deserves to have ethical legal representation.
