tanqtonic
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RE: Trump Administration
(03-26-2018 06:05 PM)illiniowl Wrote: (03-26-2018 01:25 PM)tanqtonic Wrote: (03-26-2018 01:06 PM)RiceLad15 Wrote: To the latter, doesn't Cohen's admitted action of paying the NDA settlement out of his own pocket risk his disbarment? My understanding is that him paying Daniels for Trump would be a clear ethics violation and would be a fast-track to disbarment. So if, based on his own admissions, he is willing to do something that would result in him being disbarred, why would the risk of disbarment deter him from other actions (e.g. being involved in the threats to Daniels)? Now, the question (which I asked earlier), is why he would have said he did this, and not taken another route.
And, I get the point y'all are trying to make about not using the language in the email to the Newsweek journalist to indict Cohen for the accusation leveled by Daniel's. I was unaware of just how far some lawyers were willing to go when threatening people to do what they wanted, and that the threat of physical violence is such a red line that you wouldn't use threats like what Cohen made as evidence that someone was willing to go further.
There is a slight risk.
The actual rule is Rule 1.8 of New York’s Rules of Professional Conduct, which provides that “While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client.”
There has to be a complaint filed, by a person with interest. Tell me who would qualify to file that complaint?
Further, the specific terminology is 'advance'. If I make a payment on behalf of a client, with *no* expectation of payback, that is, by definition, not an 'advance'.
If he was paid by Trump previously, then the passthrough doesnt meet the criteria either.
The rule is put into place specifically to keep an attorney from having an undue leverage over the client on a matter. I utterly fail to see where this in any way would be applicable here.
It just doesnt seem to meet either the wording, or the intent, of the rule to me. I dont see this as anywhere near a "clear" ethics violation in the slightest, let alone an ethics violation in the most general sense.
And he would have to do it because of the Canon of Ethics and the attorney duty to keep confidences, he cannot even identify Trump as a client in the matter. Let alone that any identification of Trump would breach the NDA itself since the NDA states that the parties cannot even admit they are parties to the agreement, let alone that they know of its existence.
(03-26-2018 02:30 PM)tanqtonic Wrote: Contemplated litigation is when you talk to your attorneys about how and when to file. Or how and when to settle before filing. The 'contemplated' means concrete plans are in place or are being put into place.
It is well down the road from executing an NDA. Simply put it is a contract -- 130k for you, and we are both precluded from ever talking about this. Every contract has a possibility of being breached. But this doesnt mean at all that there is litigation concretely planned for relating to it.
The kicker is if Daniels in fact has breached the NDA, the contractually agreed to damages in the NDA will utterly destroy her financially.
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You misstate the rule. ABA rules have no effect of law. ABA is simply a trade association. No one is licensed by the ABA, nor subject to its rules. Only licensing authorities have the power to promulgate ethical rules that are followed as a matter of law. The correct rule is the New York rule I cited.
Further, this rule (and all of its variations) are there so that an attorney cannot exercise undue influence on plaintiff during litigation and pre-litigation. For example, you get injured and want to sue. You are not indigent. You can pay (somewhat). If I advance you living expenses, I will de facto have an enormous amount of undue influence on you, and could pressure you to settle for my sake, and leave your interests diminished. That is the purpose of the rule.
It is completely inapplicable in this situation.
Cohen is not losing an iota of sleep over this.
(03-26-2018 01:25 PM)tanqtonic Wrote: (03-26-2018 01:06 PM)RiceLad15 Wrote: To the latter, doesn't Cohen's admitted action of paying the NDA settlement out of his own pocket risk his disbarment? My understanding is that him paying Daniels for Trump would be a clear ethics violation and would be a fast-track to disbarment. So if, based on his own admissions, he is willing to do something that would result in him being disbarred, why would the risk of disbarment deter him from other actions (e.g. being involved in the threats to Daniels)? Now, the question (which I asked earlier), is why he would have said he did this, and not taken another route.
And, I get the point y'all are trying to make about not using the language in the email to the Newsweek journalist to indict Cohen for the accusation leveled by Daniel's. I was unaware of just how far some lawyers were willing to go when threatening people to do what they wanted, and that the threat of physical violence is such a red line that you wouldn't use threats like what Cohen made as evidence that someone was willing to go further.
There is a slight risk.
The actual rule is Rule 1.8 of New York’s Rules of Professional Conduct, which provides that “While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client.”
There has to be a complaint filed, by a person with interest. Tell me who would qualify to file that complaint?
Further, the specific terminology is 'advance'. If I make a payment on behalf of a client, with *no* expectation of payback, that is, by definition, not an 'advance'.
If he was paid by Trump previously, then the passthrough doesnt meet the criteria either.
The rule is put into place specifically to keep an attorney from having an undue leverage over the client on a matter. I utterly fail to see where this in any way would be applicable here.
It just doesnt seem to meet either the wording, or the intent, of the rule to me. I dont see this as anywhere near a "clear" ethics violation in the slightest, let alone an ethics violation in the most general sense.
And he would have to do it because of the Canon of Ethics and the attorney duty to keep confidences, he cannot even identify Trump as a client in the matter. Let alone that any identification of Trump would breach the NDA itself since the NDA states that the parties cannot even admit they are parties to the agreement, let alone that they know of its existence.
As to the bolded, there is no "standing" requirement to raise issues of professional misconduct. A state bar can prosecute and discipline any alleged misconduct of which it becomes aware, through whatever means.
The NY state bar does not need to wait until Trump (the client on whose behalf funds were "advanced") complains (which presumably won't be happening) in order to discipline Cohen. An ethical offense is an offense against the profession and the public, and doesn't require that any specific person such as a client be aggrieved, much less that such a person has to be the one who reports it. To use just the most obvious example, a divorce lawyer cannot have sex with a client, period. Even if the client never complains -- even if they end up marrying each other and living happily ever after -- the ethical violation could still be prosecuted. If Cohen violated ethics rules in the course of representing Trump, he absolutely can be disciplined regardless of whether Trump objected/objects to the conduct giving rise to the violation.
In any event, arguing the minutiae and intent of Rule 1.8 in an effort to exonerate Cohen is straining the gnat and swallowing the camel. Even by Cohen's own fantastical telling, he settled a matter for his client (Trump) without his knowledge or consent. Those are obvious violations. The salient rules are 1.2 and 1.4.
Quote:RULE 1.2: SCOPE OF REPRESENTATION AND ALLOCATION OF AUTHORITY BETWEEN CLIENT AND LAWYER
(a) Subject to the provisions herein, a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to settle a matter.
Quote:RULE 1.4: COMMUNICATION
(a) A lawyer shall:
(1) promptly inform the client of:
(i) any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(j), is required by these Rules;
(ii) any information required by court rule or other law to be communicated to a client; and
(iii) material developments in the matter including settlement or plea offers.
(2) reasonably consult with the client about the means by which the client’s objectives are to be accomplished;
(3) keep the client reasonably informed about the status of the matter;
(4) promptly comply with a client’s reasonable requests for information; and
(5) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by these Rules or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
I take it you are on Cohen's Trump legal team? I am not, and therefore am not privy to what, if anything, Cohen and Trump talked about, nor to any knowledge or instructions (or lack thereof) between the two on the matter you speak of above. Notwithstanding what Cohen stated. I would opine probably the *only* two people that can make the assertion you do that I bolded above are Cohen and Trump. Would you not agree? Given that I do not know the substance of any communications between the two, I cannot agree with you that they "are obvious violations", let alone *any* or *subtle* violations.
If you are on Cohen's Trump legal team, I would wonder about a commitment to client confidentiality of such opinions were aired to chat room such as this.
As for Cohen's account, well, it is Cohen's account. To be blunt, there are times where an attorney has to fall on a sword to preserve client communication. And perhaps lie to a third party about the presence or lack of communication between the client and the attorney. I can't begin to count the times in a negotiation with multiple competing parties, I have had a client direct me to say 'that the client is considering your offer', when in fact they are in direct talks with a third party and have shelved the deal with the person I am communicating with. I am sure you have experienced the same. And, accordingly, I am sure you are well aware that 'what Cohen says Cohen did' may in fact not the case at all.
(This post was last modified: 03-26-2018 06:58 PM by tanqtonic.)
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