Trump 2020 Attorney Discipline Case Turns to Privilege Concerns

Lawyers for Trump 2020 campaign counsel John Eastman have until June 16 to explain to a California State Bar Court judge how he may invoke attorney-client privilege in his communications with the former president and the campaign.

Judge Yvette D. Roland ordered the briefing after a Monday pretrial hearing ahead of an eight-day trial in which Eastman is defending himself against charges he violated state law and bar ethics rules regarding the advice he provided promoting false election claims.

The former Chapman University law professor could lose his law license if the court agrees with the bar’s disciplinary charges that he broke the law.

Roland noted there wasn’t an express waiver from the client with whom Eastman had confidential communications, and if it’s the Trump campaign, “that could ostensibly be tens to thousands of individuals.”

Lawyers under California Business and Professions Code Section 6068(e)(1) must “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”

A lawyer can’t reveal client communications without consent without violating the Rules of Professional Conduct. Rule 3-100 has only a narrow exception—absent a client’s informed consent—when the attorney “reasonably believes that disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in the death of, or substantial bodily harm to an individual.”

Randall Miller with Miller Law Associates, representing Eastman, said “this hasn’t really become an issue,” and Eastman’s privilege log about client communications isn’t lengthy.

Miller called the concern that he noted in a filing “a place keeper, that I can envision a question being asked” to which Eastman “might have to assert privilege because there’s been no waiver.”

The privilege is only in the context of legal advice, not a discussion of whether it will rain, Roland said. “It becomes very important to narrow down not only the nature of the communication” and to whom Eastman was communicating legal advice, according to Roland.

“I’m trying to narrow this down so it isn’t an issue at all,” she said.

Duncan Carling, supervising attorney in the bar’s Office of Chief Trial Counsel, told Roland that the bar’s position is that Eastman “has stated multiple times in public places, on podcasts, which are in our exhibit record, that President Trump had waived the privilege and authorized him to talk about these things.”

The trial is scheduled to begin June 20 in Los Angeles.

The case is In re Eastman, Cal. State Bar, No. SBC-23-O-30029, hearing 6/12/23.