If you had told me back in March 2015 when I started this blog that my 300th blogpost would struggle with trying to decide which angle of a statement to The New York Times made by a personal attorney for the 45th President of the United States about paying $130,000 to a porn star to apparently buy silence regarding that porn star’s past affair with the President at a time that was within months of the President’s third wife giving birth to his fifth child would be worst legal ethics bit, then I … well, I don’t even know what I would have begun to have thought, much less said.
But this is the reality of the world in which we now live. So, here we are. Let’s get this over with.
You’ve certainly likely already reports from yesterday either The New York Times article itself, or the thoughts of other folks online about the story which are too numerous to try to link to at this point. The very short version is Michael Cohen, a New York lawyer who has been the private, personal attorney of the current occupant of The White House and who was, in the recent past, something of an in-house attorney for the 45th President’s family corporate organization has now provided a statement to one of the largest newspapers in the nation — that he says echoes substantively what he has told the Federal Election Commission — that he personally paid $130,000 to a woman, who goes professionally by the name, Stormy Daniels, and was not reimbursed directly or indirectly by the current President’s campaign or his family corporate organization.
I am a lawyer – I may have mentioned that on one or more occasions. For anyone who might be reading this and wondering what it is like to be a lawyer, Mr. Cohen’s experience as he describes it is definitely not what lawyers do. The best of our profession often times think of ourselves as, and even describe ourselves, as problem solvers. But we traditionally are not allowed to solve problems for people simply by throwing our own money at the problem. That aspect is just one of the ways in which this incident, and how the statement describes it, raises a whole host of immediate, problematic ethics issues for discussion.
(a) If Cohen’s statement about the transaction is true, it might have been a violation of New York’s ethics rules on business transactions with clients or not providing financial assistance to a client regarding litigation or certainly otherwise a scenario that creates a serious, personal interest conflict of interest for the attorney. (b) The making of the statement itself is not something a lawyer should likely be doing unless he’s been instructed to by the client because it just made things worse for the lawyer’s client because the porn star who had been worried she was still under an NDA now believes she is free to speak out about the affair and actually confirm other media reports rather than being coy about the whole situation. (c) It also is quite likely that Cohen’s version of the events is probably not 100% the truth, key details have been omitted, and it could very well, if nothing else, be a violation of a rule such as RPC 8.4(c).
Now, in trying to discuss such topics at length, I could repeat what other fine lawyers on the ground in New York and who are well versed in ethics have now already said in a story in The ABA Journal online about the likely violation of New York RPC 1.8(e), but I won’t. You can read what they say at this link instead. (Plus, I quite recently wrote about a somewhat similar kind of situation involving a much less crazy overall scenario and so it seems like it isn’t necessary to write more about the “doing a financial favor for a client” piece of the puzzle.)
I could also spend some time complaining about the fact that much of what I first read online posted by journalists about Cohen’s statement was how everybody kept claiming that Cohen had said he’d paid the money to Ms. Daniels “out of his own pocket,” which he never actually said apparently. But, instead you can go read a good take on that aspect of the situation here.
I also could focus on the fact that, without respect to the shadiness of the whole transaction and how problematic that is for a lawyer to be near, the decision to give a statement to The New York Times appears likely to damage his client as Ms. Daniels is now signaling through the media that she can tell all because Cohen’s public statement confirming the payment is a breach of the NDA she signed. But, there is already a better article about that development you can read here.
Instead, I want to point out my own opinion, given the way a certain someone is known to operate, about how this likely went down:
Cohen is likely telling the truth about paying with funds of his for which no one reimbursed him, but omitting the most salient detail. He probably wasn’t “reimbursed” by anyone after making the payment because he was probably provided those funds, pretty much immediately in advance of the transaction, as some sort of bonus or even a “gift” with the tacit understanding about what he was expected to do with those funds — purchase Ms. Daniels’s silence.
So, under that theory, if Cohen’s conduct is unethical, then it is probably because it either is, or might very well be akin to, money laundering or money laundering in reverse. . . if that’s a thing.