Here is Michael Cohen’s lawyer and spokesman saying categorically that Cohen negotiated agreement w/o ever telling his client DJT anything abt it and made him a party to the agreement w/o any intention of telling him abt it or having him sign it. @MichaelAvenatti @renato_mariotti pic.twitter.com/xqNLvcx1uX
— Josh Marshall (@joshtpm) March 29, 2018
David Schwartz, the friend, lawyer, and spokesperson for Trump attorney Michael Cohen, has an interesting way of sticking up for his client. In a CNN interview, Schwartz talked about Cohen’s nondisclosure agreement that he made to keep Stormy Daniels from talking about an alleged affair between her and Donald Trump in exchange for $130,000. Schwartz insisted that Trump had nothing to do with the agreement, and that Cohen negotiated it without telling Trump about it.
“The president was not aware of the agreement,” Schwartz said. “At least, Michael Cohen never told him about the agreement.”
Schwartz also said that Trump was not aware of the payment made under the agreement.
That definitely sounds like he’s telling the world that his own client violated legal ethics rules.
Cohen, who is licensed to practice law in the state of New York, must adhere to the bar’s rules of professional conduct. Rule 1.4 states that lawyers shall promptly inform their clients of “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,” as well as “material developments in the matter including settlement or plea offers.”
Rule 1.0(j), which is referenced there, defines “informed consent” as:
the agreement by a person to a proposed course of conduct after the lawyer has communicated information adequate for the person to make an informed decision, and after the lawyer has adequately explained to the person the material risks of the proposed course of conduct and reasonably available alternative.
Naturally, Schwartz’s admission regarding his client’s legal practice led to some confusion and amusement on Twitter.
🎶If you’re about to lose your license clap your hands 👏🏾👏🏾🎶 https://t.co/e8JGYjopR4
— Asha Rangappa (@AshaRangappa_) March 29, 2018
Do I have any contract law attorneys as followers?
Am I wrong in thinking this will be shown in law school classes as an example of what NOT to say about a case you’re working on? https://t.co/HwBMDHc3V7
— Frank Luntz (@FrankLuntz) March 29, 2018
Of course, the way Schwartz and Cohen tell their story, they’d likely insist that there was no violation of the rules here, because Cohen wasn’t representing Trump at all in this contract, only EC LLC, the company that paid the money to Daniels. The whole crux of their defense is that Trump didn’t have to sign the contract because he wasn’t a party to it.
There are two big problems with this. First, is that the contract specifically lists Trump (under the pseudonym David Dennison) as one of the parties in the very first section of the agreement. The other problem, which has become much more significant in recent days, is that the arbitration clause in the agreement only refers to disputes between Trump and Daniels. It doesn’t even mention the company. On top of that, there is an entire section devoted to “Representations & Warranties and Agreements” by Trump.
Schwartz’s claim that Cohen acted on Trump’s behalf without telling him could get Cohen in trouble with the bar if it’s true. It also raises serious questions about the validity of the Stormy Daniels agreement. Questions that Daniels’ lawyer now wants to answer by having both Trump and Cohen testify under oath at depositions. Quite the mess, indeed.
This is why people who are facing lawsuits often don’t comment on them in public.