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Michael Cohen, an attorney for Donald Trump, arrives in Trump Tower in New York on Dec. 16, 2016. (AP file photo)

The ethical problems of Trump’s attorney

Donald Trump’s attorney Michael Cohen has major ethical and legal problems, potentially meriting disbarment and prosecution for crimes.

I have taught legal ethics in law school for nearly 15 years. As I tell my students, attorneys are expected to conform to the law and ethical rules, including in New York where Cohen is licensed.

In the circumstances surrounding his paying a pornographic actress hush money out of his own pocket to silence her about her alleged affair with Donald Trump, Cohen may have broken several laws and ethical rules.

First, Cohen seems to be admitting that he did make this payment during the 2016 presidential campaign. If this admission is being made without the express or implied authorization of Trump, Cohen has violated MRPC 1.6. Specifically, if Cohen is revealing information protected by attorney-client confidentiality without permission, this is the first ethical problem.

Second, in paying money to Stephanie Clifford (known in the porn industry as Stormy Daniels), he is violating MRPC Rule 1.8 (e), which bars an attorney from providing “financial assistance to a client in connection with pending or contemplated litigation.” While it is not clear if there would have been litigation surrounding the possibility of Clifford disclosing the affair, suits for defamation of character or a contract not to disclose the affair could have been possible, and therefore paying her to settle would have been a potential violation of 1.8 (e). Moreover, if Cohen badgered Clifford into this settlement, that is a violation of Rule 3.4, fairness to opposing party.

In addition, Rule 1.8 (d) prohibits an attorney prior to conclusion of representation of a client from negotiating an agreement to get media or literary rights to issues relating to the representation. The basis for this rule is to prevent attorneys from compromising their zealous advocacy for a client and perhaps altering their legal strategy or advice in the hope that a different outcome would make for a more profitable story.

This is an issue of conflict of interest. Cohen is reportedly shopping a book about Trump, potentially including the telling of the story of the latter’s relationship with Clifford. Not only might the book include information protected by attorney-client information, but it is possible that the representation with Trump is not complete and that he violated this rule. Even if the representation is concluded, if Cohen paid off Clifford or did anything in representation of Trump with the idea that he might be able to personally profit, that is a conflict of interest that violates Rule 1.8.

It is also possible he violated Rule 1.1 — competence — in not providing appropriate advice or representation to Trump and also perhaps committed malpractice in acting in a way that undermined a duty to his client. In fact, one can also argue that if the payment was made to Clifford without Trump’s knowledge or consent, Cohen violated Rule 1.2, acting beyond his scope of representation for his client, and Rule 1.4, failure to communicate with his client and keep him informed about the status of a matter.

Another problem for Cohen is that if he made an expenditure of $130,000 to Clifford with the purpose of silencing her so as to prevent her disclosure from affecting the 2016 election, this might violate federal law. This is an argument that Common Cause is making. Federal election law would require expenditures such as this to be reported. If Cohen then tried to hide this payment by working with Trump or others, it might constitute aiding and abetting or conspiracy to obstruct justice, both of which are violations of federal law. Breaking the law is also a violation of Rule 8.4, in that such acts are either prejudicial to the administration of justice or that speak to the honesty or trustworthiness of an attorney.

Overall, Cohen appears to have committed a lot of ethical and legal mistakes and it will be interesting to see what disciplinary action he faces.

David Schultz is a professor of political science at Hamline University. This column does not necessarily reflect the opinion of Minnesota Lawyer.

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One comment

  1. Based on recent revelations, assuming the president was paying back Cohen $35,000 monthly installments, that would seem to be a loan arrangement that must be in writing under MRPC 1.8(a). In addition, I wonder about the jurisdictional nature of the transaction if Cohen is licensed in NY and the Daniels deal arose in CA or someplace else.

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