February 14th, 2018

Trump’s Lawyer, the Porn Actress, the 130G Payoff and Attorney Ethics

Stephanie Clifford (aka Stormy Daniels)

Yesterday news broke that longtime Donald Trump attorney, Michael D. Cohen, was responsible for paying $130,000 to porn actress Stephanie Clifford (aka Stormy Daniels) on behalf of Trump in 2016, before the election.

“In a private transaction in 2016, I used my own personal funds to facilitate a payment of $130,000 to Ms. Stephanie Clifford,” Michael Cohen said in a statement. “Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.”

When the underlying stories of they payoff started in January, many folks immediately started looking to see if such a payment violated campaign finance laws. And indeed, that is what most of his statement addressed yesterday.

But I’m looking at the New York Rules of Professional Conduct. Those of us in the personal injury bar know, for example, that advancing funds to clients is a big fat no-no. Does the same provision apply here?

The relevant rule reads as follows:

RULE 1.8:

CURRENT CLIENTS:
SPECIFIC CONFLICT OF INTEREST RULES

(e) While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client…

OK, you see that ellipses and you want to know what comes after, right? There are three exceptions, each of which invite an investigation to see if they apply:

(1) the transaction is fair and reasonable to the client and the terms of the transaction are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;

(2) the client is advised in writing of the desirability of seeking, and is given a reasonable opportunity to seek, the advice of independent legal counsel on the transaction; and

(3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether the lawyer is representing the client in the transaction.

The full statement is below and you can decide for yourself if you think it looks like an advance or guarantee of financial assistance (not because Trump needs it, but to hide it). (Edit: Whether there was litigation involved — matrimonial or contract? — is impossible for us to know from here.) Another problem may be that, from Trump’s perspective, this isn’t a transaction if he claims not to be repaying the money.

At the very least, it seems that Cohen has invited an investigation from the Disciplinary Committee. I’ve long said that Trump is a one-man bar exam with never-ending legal issues unlike any other person. That pattern continues today.

The statement:


 

 

May 25th, 2017

Some Advice for Trump’s New Lawyer

Marc Kasowitz

As the rapidly burgeoning #TrumpRussia scandal moves forward, with evidence piling up that Trump is trying to obstruct congressional investigations into collusion between his campaign and Russia, Donald Trump has picked some personal counsel.

Trump, of course, has picked many attorneys before, he being involved in over 3,500 lawsuits. And today’s “winner” of the competition for the job is Marc Kasowitz, of Kasowitz Benson Torres.

This is the same firm that employs former Senator Joseph Lieberman, who was rumored to be in line to be FBI chief. Whether it was an obvious conflict of interest to keep considering Lieberman, or Lieberman thought the 10-year gig might not actually provide the job security it once did, nobody has (yet) leaked.

But rather than go down that rabbit hole, I wanted to focus on this tidbit from one of Trump’s former  lawyers, Patrick “Paddy” McGahn. Mcgann had represented Trump many,  many times, and testified when Trump’s Taj Mahal casino went belly-up.

If the McGahn name sounds familiar, it’s because his nephew Donald McGahn is now White House Counsel. That’s another Trumpian rabbit hole I’ll try to avoid.

No, the place I’m going is this little piece of deposition testimony from Paddy McGahn over the Taj bankruptcy proceedings: It seems that the lawyers decided they could never meet with Trump one-on-one. The rule was that there always had to be a second lawyer in the room.

Why a second lawyer? To run up the bills? Hell no, to protect themselves.

Trump, Paddy McGahn testified, always had a practice of having two lawyers present when meeting with Trump to avoid problems with his lying. He and another attorney would meet together with Trump because “Donald says certain things and then has a lack of memory.”

So the lesson for Kasowitz is this: Make damn sure there are no one-on-one meetings with Trump. Record anything that can be recorded and have someone take explicit notes while it happens.

This is the only way to protect yourself when making representations about Trump, as he has a penchant for tweeting or saying something completely opposite later on. It’s a a habit.

#ProtectYourReputation

 

 

May 10th, 2017

TrumpRussia, the Watergate Sketches, and You

Jurors listen to the Watergate tapes. Sketch by John Hart.

The sketches hang in my office as souvenirs from a trial long ago. I represented the estate of the courtroom sketch artist in a medical malpractice trial, and a grateful widow sold them to me when the trial was over.

Watergate. The scandal by which all others are measured, as the ubiquitous -gate suffix was tagged to anything and everything that it could be tagged to.

The scandal stood for, above all else, obstruction of justice and abuse of power. As everyone knows (or should know) it wasn’t the “third-rate burglary” that sent Nixon packing. It was the cover-up.

I look at the sketches every day.

H.R. Haldeman, White House Chief of Staff, on the witness stand. Judge John Sirica behind him. Sketch by John Hart.

And now, with FBI Director James Comey being fired amidst an investigation he was conducting into the TrumpRussia scandal — no need for the -gate suffix here — Watergate is on everyone’s mind.

For it was Nixon that gave the order to ax special prosecutor Archibald Cox who was doing the investigation. And when the attorney general and deputy attorney general both refused, and resigned in what became known as the Saturday Night Massacre, the job fell to future judge Robert Bork.

No one in the Trump White House, it seems, could foresee that a president firing the guy that was investigating his own administration regarding Russia’s meddling in our election, and possible collusion, might be a problem.

But while Trump can fire Comey, and Acting Attorney General Sally Yates, and Preet Bharara, all of whom were investigating him — he can’t fire everyone. Because not everyone works for him.

Prosecutor James Neal talking to the jury. Judge John Sirica in the background. Sketch by John Hart.

New York Attorney General Eric Schneiderman is investigating Trump. And Schneiderman is beyond Trump’s reach.

The tell for if/when Schneiderman is getting close to something will be when Trump starts tweeting about him.

Ultimately, however, the Constitution charges we the people with the task of removal. And if not by an unwilling Congress, then by a change of the Congress the next election day.

One way or another the republic will survive this. We can only hope that there are no improvident actions in the interim that cost people lives.

 

February 15th, 2017

Trials, Trump and Betrayal

The feeling of betrayal is, perhaps, one of the most powerful of emotions. It comes up in law all the time, and now it comes up in politics with the Flynn-Russia scandal and Trump’s demonstration that making America great is not exactly his first priority.

Before getting to the significance in politics, a quickie look at how often it comes up in the law, always starting with the premise that two people trusted each other. Without trust, of course, there can be no betrayal.

Betrayal appears with regularity in matrimonial actions, in contract disputes between business partners, and in criminal law with snitches.

Betrayal, in the form of treason, is the only crime defined in our Constitution. Yeah, it’s that strong, since it goes to our own sense of morality.

From my practice area, betrayal probably forms the single most common reason that patients contact lawyers about potential medical malpractice actions. People entrust their lives and health to others, and those others don’t do what was expected of them.

That betrayal forms the basis of an anger that results in the phone being picked up to see how, if at all, someone can get their pound of flesh. And it’s the reason  some doctors are counseled to say “I’m sorry” rather than covering up errors.

And because of this very human emotion, it comes up in literature with great frequency.

Heaven has no rage like love to hatred turned, Nor hell a fury like a woman scorned.  — William Cosgrove

Betrayal is the only truth that sticks. — William Miller
Though those that are betrayed Do feel the treason sharply, yet the traitor Stands in worse case of woe — William Shakespeare

And more, from John Lennon’s son Sean, since it cuts to the heart of what makes for a good story:

There are only really a few stories to tell in the end, and betrayal and the failure of love is one of those good stories to tell.

Since betrayal cuts to the soul, it’s a common theme among trial lawyers that, if used properly, can captivate an audience. It’s a story every judge and juror can relate to. If, at trial, it’s possible to show that one person betrayed the trust of another, you can be 100% certain that a competent trial lawyer will use that theme.

So now we turn to politics and Donald Trump, and bring those trial tactics to a different arena.

It is a given that those who despise Trump will never, ever be disappointed in him. Such people are incapable of being betrayed.

But what of those that believed in him? What of those that bought his hats and shouted his name? Are these not the only ones who can be disappointed, the only ones who can be betrayed?

As the weeks roll on, look to see this concept of betrayal used over and again in the political arena, with the Flynn-Russia scandal, and likely elsewhere. It is one thing for a voter to excuse the conduct of a politician by simply ignoring the boastfulness and hyperbole, but it is altogether different when the hyperbole is supported by conspiring with a foreign power.

Especially when this was the stance of the Trump-Pence administration on February 2nd during a CBS Face the Nation interview:

Look in the future for Trump opponents, be they Democrat or Republican, to pick up this theme, by going directly to Trump’s base of support.

Hell may have no greater fury like a Trump supporter scorned.

 

February 3rd, 2017

Trump’s Hair and his Doctor (And a HIPAA violation?)

Surfing through Trump’s hair.

The New York Times ran a story yesterday about Donald Trump’s long time doctor, Harold Bornstein, and his disclosure that his ridiculous hair is maintained with the male pattern baldness drug Propecia.

President Trump takes medication for three ailments, including a prostate-related drug to promote hair growth, Mr. Trump’s longtime physician, Dr. Harold N. Bornstein, said in a series of recent interviews.

Hair! Trump! What fun! Right? And as a bonus, the drug is also linked to occasional, detrimental, sexual side effects. Trump! And Sex! It sells!

But just one little bitty problem.  It appears from the article that the good Dr. Bernstein might not have had permission to disclose.  Oops.

Bornstein, it seems, has been Trump’s doctor since 1980, giving him a wealth of very personal, and very private, information. But no contact lately.

Well, if doctor and patient didn’t have contact, how could he get permission to divulge information that is very clearly protected by the patient-doctor privilege? From the article:

[Bornstein] said that he had had no contact with Mr. Trump since he became president, and that no one from Mr. Trump’s White House staff had asked for copies of the medical records that he has kept for the last 36 years, or called to discuss them.

And then there is this, supporting the idea that Bornstein didn’t have permission to open his yapper to the press:

At times in the interviews, Dr. Bornstein was moody, ranging from saying that Mr. Trump’s health “is none of your business” to later volunteering facts.

Well, that’s not good, is it?

Privacy is the bedrock of the relationship, for if patients can’t have confidence in the confidentiality of what is said, they may omit things that turn out to be detrimental to their health. And that is bad. Bad. Bad. Bad.

From the Merck Manual, in an overview on the subject:

All people are entitled to confidentiality unless they give permission for disclosure or they clearly can no longer express a preference (for example, if they are severely confused or comatose). A federal law called the Health Insurance Portability and Accountability Act (HIPAA―Health Information Privacy) applies to most health care practitioners and its regulation, known as the Privacy Rule, sets detailed rules regarding privacy, access, and disclosure of information.

Ahh, the Privacy Rule. And here is all you want to know about it.

And a doctor could face criminal penalties, if the government was so inclined, and could likely face action against his license.

If Trump is pissed — and he’s always pissed at something — he could theoretically make a complaint to Health and Human Services and ask for enforcement. And HHS could, in turn, refer the matter to the Department of Justice.

Would HHS and DOJ say no to the boss?