Trump’s Lawyer May Face Ethics Complaint Over Payment to Porn Star

Trump’s lawyer claims that he personally sent $130,000 to porn star, Stephanie Clifford, who states that she had an affair with President Trump prior to his election.  The lawyer, Michael Cohen, claims the payment was legal, but was it ethical?

A recent New York Times article discusses some of the potential ethics violations.  For example, Rule 1.8(e) of the New York Rules of Professional Conduct states:  “While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client . . . .”  So, if Ms. Clifford contemplating some type of litigation against Mr. Trump, then his payment for Mr. Trump’s benefit would trigger a violation of this ethics rule.

But what if Ms. Clifford was not threatening litigation but simply that she was going to make the affair public?  If the payment was to buy Ms. Clifford’s silence prior to the election, it could trigger a violation of Rule 1.8(a) if it was a loan and if Mr. Cohen did not have a written loan agreement with Mr. Trump.  If Mr. Cohen has a written loan agreement and followed other aspects of Rule 1.8(a), which include that the loan terms are fair and reasonable and that Mr. Trump was advised in writing about seeking out independent legal counsel on the matter, then Mr. Cohen would be in the clear on this front.

Assuming Mr. Cohen did not violate any provision of Rule 1.8, he could still be in hot water if he lied about the payment.  Mr. Cohen has said that “I used my own personal funds to facilitate a payment of $130,000 to Ms. Stephanie Clifford.  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.”  Another New York Ethics Rule, Rule 8.4, prohibits a lawyer from “engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation.” If any part of this explanation is a lie, for example someone else has repaid him on behalf of Mr. Trump, then that would be Mr. Cohen engaging in dishonesty, deceit or misrepresentation.

Finally, let’s say Mr. Cohen hasn’t lied, simply used his own money, has not been reimbursed, litigation was not be threatened, it wasn’t a loan, and it was simply a gift.  Mr. Cohen would seem to be in the clear ethically, but there may still be one nagging legal issue – did he file a Form 709 with the IRS?  The IRS requires that anyone making gifts totaling more than $14,000 to anyone other than your spouse usually must filed a Form 709.  The other types of gifts not subject to reporting to the IRS are donations to political organizations, transfers to some tax exempt organizations, and payments that qualify under educational or medical exclusions.

It will be interesting to see if and how we learn if Mr. Cohen is completely in the clear.

Can the same lawyer represent Bannon, Priebus & McGahn?

A recent blog post asks whether William Burck of Quinn Emanuel can ethically represent Steve Bannon, Reince Priebus, and Don McGahn in connection with the Mueller investigation.  The blog post identifies a number of important issues, but the analysis is incomplete.  Although Burck’s representation appears to create a conflict under Rule 1.7(a), Burck could continue the representation under Rule 1.7(b) if he “reasonably believes that [he] will be able to provide competent and diligent representation to each” and each client provides informed consent.  While the public does not — in my view — know sufficient facts to determine whether Burck can reasonably represent all three clients, a complicating factor is that McGahn appears to be giving Burck and Bannon direction as to whether executive privilege applies to Bannon’s testimony.

China’s Supreme People’s Court & Supreme Court Justice Roberts’ 2017 year report | Supreme People’s Court Monitor

Preservation of rule of law and public confidence in the judiciary is a central object of the Rules of Professional Responsibility, and of  course canons of judicial conduct.  These are also concerns of China’s Supreme People’s Court which oversees a vast system and exercises rule-making power that we would see as legislative territory.

Most of the attention given by us in the west focuses on violations of civil rights of dissenters to the Communist Party’s monopoly of political power.   Yet “Rule by law” is a major focus of the ruling party.  It should not be understood as embrace of principles such as an independent judiciary.  But the prompt translation and circulation in China of Chief Justice  John Roberts annual report is evidence of the normalization of China’s judicial system. – gwc

Source: OTHERWISE: Supreme People’s Court & Supreme Court Justice Roberts’ 2017 year report | Supreme People’s Court Monitor

by Susan Finder
Chief Justice John Roberts of the United States Supreme Court may be surprised to learn that a translated version of his 2017 year-end report on the federal courts was recently published by the People’s Court Daily, as it has been for the past twelve years. It was republished by Wechat and Weibo sites affiliated with the Supreme People’s Court (SPC) and other prominent legal websites. What significance does the report have?

The translators that bring the year-end reports to Chinese readers are Mr. Huang Bin (formerly of the SPC’s China Institute of Applied Jurisprudence and now of the National Judicial College, a former Yale Law School visiting scholar) and Ms. Yang Yi (China Institute of Applied Jurisprudence, a former Columbia Law School visiting scholar) are the ones who .
Two subjects in Justice Roberts’ report 2017 are likely to resonate with Chinese readers. The first is how the federal courts dealt with national disasters in 2017 (introductory comments in some of the Wechat versions mention that China has only scattered legislative provisions related to emergency measures for the courts). The second is sexual harassment and Justice Roberts’ request to the Director of the Administrative Office of the United States Courts to organize a working group to review the code of conduct for the federal judiciary, guidance to employees on issues of confidentiality and reporting of instances of misconduct, and rules for investigating and processing misconduct complaints.

OTHERWISE: An era ends at public defender’s office | Di Ionno | NJ.com

John McMahon,  Chief Trial Attorney at the Newark office of the New Jersey Office of the Public Defender is retiring after 27 years. P.D.s have a wholly undeserved bad name. I tried cases part-time for the P.D. in Newark for four years. Lawyers like McMahon, his father, Dale Jones, Cathy Waldor, Jerry Soffer, Ollis Douglas, Michael Marucci, Verna Leath, and Denise Cobham  were among the best lawyers I met in my thirty year career practicing law in the county. The Public Defender’s office participated in every capital case in new Jersey from restoration in 1982 to repeal in 2017. 225 trials, 60 death sentences, no executions. All this work by dedicated public servants who are not lionized on TV, but who see the humanity in their clients and uphold the highest standards of our profession.

In the photo above he is comparing a picture of his client to the police artist’s drawing of the assailant.   I tried enough “eyewitness ID” cases to know that eyewitness ID’s are highly unreliable.- gwc

Source: OTHERWISE: An era ends at public defender’s office | Di Ionno | NJ.com

In the public defender’s office in Newark, there are two storage closets filled with clothes.

In one, is a rack of women’s outfits and shelves of neatly arranged men’s and women’s shoes. In the other, are the men’s clothes. The clothes are modest. Presentable. You might say bland. Certainly nothing that calls for attention.

John McMahon calls it “the haberdashery.” It’s where the public defenders go to dress their clients for courtroom appearances in front of judges, juries and news cameras.

The reason?

Nothing says guilty like a department of corrections jumpsuit. Better to have the defendant in civilian clothes, dressed like the jury of their peers.

“It makes a difference,” McMahon said during an interview at his office, which is mostly empty now. Gone are the newspaper clips about his biggest cases, and the pictures of his wife and children. Also gone are the stacks of brown accordion folders, stuffed with volumes of case information for his final few clients.

McMahon, 55, is retiring after 27 years in the Essex County branch of the state public defender’s office, to enter private practice.

And while he reflected on some of his most gratifying legal maneuvers, at the heart of what he did was told through the story of the clothing. ***

KEEP READING

The President-as-Plaintiff, the Republican Party and the Battering of Norms – Lawfare

And what about the lawyers who made the blatantly unconstitutional   demand the MacMillan withdraw the book fire & Fury and threatened action for defamation and libel? R.P.C. 1.1 provides  Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation Rudimentary knowledge of the law shows that the demand for withdrawal of the book ad threats of action are without basis in law.  There appears to be a basis for disciplinary action against the Beverly Hills lawyer Charles Harder who penned the notorious letter. – gwc

Source: OTHERWISE: The President-as-Plaintiff, the Republican Party and the Battering of Norms – Lawfare