Michael Avenatti is quickly becoming the most famous lawyer in America today – or at least second to Michael Cohen. He began as Stormy Daniels’ lawyer for the limited purpose of trying to get her released from a non-disclosure agreement (“NDA”) with President Donald Trump (or his surrogate counterparty to Daniels), and has since become a daily TV campaign against the President and his “personal” lawyer, Cohen.
But Avenatti has done something extraordinary. He came into possession of actual records relating to Michael Cohen that disclose significant fees from Corporate America and others, or at least a summary report about them. While, to date, we don’t know the source of this information, it now seems likely that Avenatti received the records from someone not entitled to see them, or at least not entitled to disclose them.
Current reports suggest that Avenatti received them from a reporter who got them (probably anonymously) from a Treasury Department employee, or from a Treasury employee directly, but the possibilities that potential critics of Avenatti could have come up with would have been limitless. Did an Avenatti private investigator break into Cohen’s office? Not likely. Did Avenatti bribe Cohen’s bank or bank representative? Also not likely. Was Cohen’s accountant or even a cleaning person at Cohen’s office paid by Avenatti to search Cohen’s office for “something worthwhile”? Also improbable. Had any of these occurred – I certainly don’t suggesting any of them did – full stop. Nothing more to talk about – the recipient lawyer committed a felony. Putting aside jail, a felony conviction leads to mandatory disbarment, as it should. End of discussion.
But what if a Treasury employee was sick and tired of hearing about the newly drained swamp when Cohen’s bank records showed and concluded that the swamp is getting deeper, or the Treasury employee, as now reported, feared that official files were disappearing? And so, with no encouragement from or knowledge by Avenatti, (s)he mailed the records – Avenatti never importuned the conduct, having no idea who sent them to him. The Treasury employee likely committed a federal crime disclosing those records – whether to Avenatti or to a reporter who then sent them to Avenatti.
But in this hypothetical, Avenatti asked for nothing, didn’t solicit the records, does not know who sent them and has no idea where they came from. Indeed, for all Avenatti knew, the mailing containing the records could have come from Cohen’s wife, sick and tired of her husband paying more attention to his waning relationship with Trump than to her.
So with this background, Avenatti has asked to appear in New York Federal Court in the Cohen matter (as he is not admitted to that Court, he needs the judge’s permission). Cohen’s lawyer tells the Court that Avenatti should not be permitted to appear because of Avenatti’s actions in obtaining and publishing information about Cohen’s finances. Avenatti’s court-filed response doesn’t talk about how he received the records. He doesn’t deny or confirm a thing. He simply focuses on the fact that “in less than 48 hours after it was published, more than 99 percent of the payments to Mr. Cohen listed in the report were proven accurate either by other reporting or by the entities themselves that made the payment.” [Avenatti’s emphasis]. Via twitter, Avenatti tersely tells the public that the source is his “work product” and “nobody’s business.”
Reports now indicate that an anonymous Treasury official is the most likely culprit (hero), so let’s go with it (the Treasury Department Inspector General is investigating). Thus, assume, having done nothing wrong himself, Avenatti came into possession of records which he well knew he wasn’t entitled to receive, and that the sender wasn’t entitled to send them. Where, then, does Avenatti stand legally and ethically – even if he can argue “attenuation”, i.e., he received them from a reporter who got them from a Treasury employee, was he violating the law?
Not clear. If an attorney is in litigation and his adversary mistakenly sends him an email and it becomes clear that the material wasn’t intended for him, he becomes immediately obliged to notify the sender. But Cohen’s lawyer isn’t claiming that he mistakenly sent the material to Avenatti; the anonymous sender expressly intended to send the material to Avenatti. So if Avenatti has no idea where the documents ultimately came from, what was his obligation?
For his part, Avenatti invokes his First Amendment right to publish. You may recall that while candidate Trump’s campaign was underway, The New York Times received by mail part of Trump’s tax returns – with no idea who sent them. The Times studied the issue, concluded the documents were accurate and, consistent with the First Amendment, decided to publish them. Avenatti appears to use the benefit of that precedent by referring to his First Amendment right – although, the press’s application of its First Amendment rights are different from an attorney’s, not to mention the potential legal and ethical restrictions an attorney may face.
I’m not here to torpedo Avenatti’s good standing as an attorney. And until we actually know the source of his information (if ever), we may never know whether he acted improperly. We do not know what the judge in the Cohen matter will do – whether she will take Avenatti’s disclosure of leaked information into account when deciding if he can appear before her. And while it is nice that Avenatti relies on concessions by the corporations that his information was mostly correct, is that enough?
There may be differing opinions on this. We have solicited the thinking of Professor Roy D. Simon, a noted authority on professional responsibility. He says this:
Using purloined documents is like fencing stolen goods. A lawyer who receives documents from an anonymous source should treat them like a suspicious attachment to an email from a stranger – don’t take the click bait until you check it out! Notify the court, notify opposing counsel, and investigate the source to the extent possible. Don’t read or use the documents until you have determined that the disclosure was authorized or you have obtained the court’s permission to use them. Rushing headlong into using the documents, like clicking on an unexpected email attachment, may infect your entire case with a malicious virus.
Extremely good advice for a lawyer who finds herself in a situation like Avenatti’s!
Make no mistake: Avenatti is playing in a hard ball league. While the media isn’t challenging him over making public questionably-obtained documents (for obvious reasons) , Avenatti should understand that his conduct will come under further scrutiny. Indeed, lawyers – even lawyers with the goods on their opponents – may face a reckoning over their own conduct even when that (possibly questionable) conduct may seem to benefit the public interest.
Joel Cohen is a former state and federal prosecutor, and practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. He is an adjunct professor at Fordham Law School, regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of Broken Scales: Reflections on Injustice (ABA Publ. 2017). Dale J. Degenshein, special counsel at Stroock, assisted in preparing this article.
[Image via NBC screengrab]