Legal Analysis

‘If True, Highly Unethical’: Michael Avenatti May Have Another Big Problem on His Hands

Adult entertainer Stormy Daniels looks to be souring on Michael Avenatti. But that may just be the least of his problems. Based on the numerous public complaints aired against her attorney on Wednesday, Avenatti very well could be facing an ethics investigation in the near future.

In a bombshell interview with the Daily Beast’s Betsy Woodruff, Daniels said that Avenatti launched the now-hobbled defamation lawsuit against President Donald Trump in direct opposition to Daniels’ own requests. That is, to hear Daniels tell it, Avenatti not only filed a lawsuit without telling his client but against his client’s express wishes.

Legal experts said that this was a very big and basic mistake–and a fairly obvious one at that.

Former federal prosecutor Renato Mariotti took note of the apparent ethical blunder via Twitter. Remarking on the story, he noted, “If true, that is highly unethical. Lawyers cannot ethically file a case on a client’s behalf without first obtaining the client’s informed consent to do so.”

Mariotti elaborated in additional comments to Law&Crime:

You can’t take major steps in any litigation without your client’s informed consent–much less against their wishes–that’s extremely unethical. Any lawyer should know that. It’s lawsuits 101. That’s just common sense.

New York University Law School Professor and legal ethics expert Stephen Gillers also weighed in on the matter.

“If he filed the case with her name when it was clear that she told him not to, then he could be sued for that,” Gillers told the Daily Beast. “He could be sued for malpractice. If true, she has a malpractice case against him. I emphasize if true. And if true, he would be subject to discipline but not as serious as disbarment.”

On top of allegedly filing suit against Daniels’ wishes, Avenatti also is alleged to have started a crowdfunding effort on Daniels’ behalf without ever telling her about it and has allegedly repeatedly refused to provide Daniels with information about prior funds purportedly raised and spent on her behalf.

“For months I’ve asked Michael Avenatti to give me accounting information about the fund my supporters so generously donated to for my safety and legal defense. He has repeatedly ignored those requests,” Daniels claimed in her statement to the Daily Beast. “Days ago I demanded again, repeatedly, that he tell me how the money was being spent and how much was left. Instead of answering me, without my permission or even my knowledge Michael launched another crowdfunding campaign to raise money on my behalf. I learned about it on Twitter.”

Avenatti, for his part, walked the line between defending himself without expressly disagreeing with or criticizing Daniels. While calling himself Daniels’ “biggest champion,” Avenatti attempted to clarify the monetary situation.

“The retention agreement Stormy signed back in February provided that she would pay me $100.00 and that any and all other monies raised via a legal fund would go toward my legal fees and costs,” Avenatti said. “Instead, the vast majority of the money raised has gone toward her security expenses and similar other expenses. The most recent campaign was simply a refresh of the prior campaign, designed to help defray some of Stormy’s expenses.”

Daniels also said that she was considering taking Avenatti off her case and detailed a laundry list of complaints against her highly visible attorney.

Daniels noted:

I haven’t decided yet what to do about legal representation moving forward. Michael has been a great advocate in many ways. I’m tremendously grateful to him for aggressively representing me in my fight to regain my voice. But in other ways Michael has not treated me with the respect and deference an attorney should show to a client. He has spoken on my behalf without my approval. He filed a defamation case against Donald Trump against my wishes. He repeatedly refused to tell me how my legal defense fund was being spent. Now he has launched a new crowdfunding campaign using my face and name without my permission and attributing words to me that I never wrote or said.

So, with all those accusations and excuses in mind, let’s take a look at the germane ethical rules here.

California Rule of Professional Conduct 1.4 reads, in relevant part:

A lawyer shall:

(1) promptly inform the client of any decision or circumstance with respect to which disclosure or the client’s informed consent is required by these rules or the State Bar Act;

(2) reasonably consult with the client about the means by which to accomplish the client’s objectives in the representation; [and]

(3) keep the client reasonably informed about significant developments relating to the representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed…

The current ethical rules adopted by the State Bar of California contain myriad references to the concept of “informed consent.” Those define the term like this:

“Informed consent” means a person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct.

Therefore, at a minimum, it would appear that Avenatti might have violated basic ethical rules about keeping his client informed about actions taken on her behalf–and that doesn’t even take into account the allegation that he filed a lawsuit after she told him not to do so. But what about that allegation?

This would appear to be covered by California Rule of Professional Conduct 1.2, which reads, in relevant part:

[A] lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by rule 1.4, shall reasonably consult with the client as to the means by which they are to be pursued.

In additional comments to Law&Crime, Mariotti explained how the above rules might apply to Avenatti’s situation.

“Those rules–1.2 and 1.4–together make it crystal clear that a lawyer cannot make significant decisions about a potential legal case without the client’s informed consent,” Mariotti noted. “The attorney’s job is to abide by the client’s wishes–so long as they are ethical and legal–and the attorney cannot make decisions without consulting with the client as to whether that is the right course to take.”

Law&Crime reached out to Avenatti for additional comment and clarification on this story. In turn, he provided Law&Crime with a video link to a Stormy Daniels CNN interview from October of this year in which she defended Avenatti against accusations that he had fallen behind on her case.

“We are in contact every single day,” Daniels notes in the interview. “Almost three or four times a day sometimes. And I will message him about other things that are going on…he always puts me first.”

[Image via Hector Retamal/AFP, Getty Images]

Follow Colin Kalmbacher on Twitter: @colinkalmbacher

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