Avenatti: Stormy Daniels files suit alleging her old lawyer was a 'puppet' for Trump, Cohen

[triron]

https://www.nbcnews.com/news/us-news/stormy-daniels-suit-my-old-lawyer-was-puppet-trump-cohen-n880476

[NCTraveler]

1. It seems like this is what should have been done for his client months ago.

The revelations were there. It serves Avenatti's main purpose of going after the Trump gang and his clients wish to be released from the agreement.

[jberryhill]

2. Except he doesn't want to do that

I had commented quite a while ago on the curious lack of a fraud in the inducement claim in the original action, but I believe there are a couple of reasons why he didn't do that then, and doesn't want to now.

When I get a copy of the complaint, I'll take a look at whether it is likely to be moved up and out of LA Superior Court and consolidated with the case before Judge Otero anyway.

If he is claiming that Davidson and Cohen were engaged in collusive negotiation from the get-go, though, it may have to be joined with the original case under FRCP 19.

[NCTraveler]

3. I think we will need to see how it is written.

Might be laughable. Wouldn't be his first complaint to be laughable.

Considering this would completely serve his personal ambition and that of his client, I think he would have moved earlier.

He still has a way of getting people to react.

[jberryhill]

5. Here it is

http://media1.s-nbcnews.com/i/today/z_creative/FiledComplaint.pdf

Yeah, as I figured... apparently, Avenatti wants to claim that Cohen and Davidson began "colluding" in January 2018, because he doesn't want to go for fraud in the formation of the contract. There were some hints about why that is previously. In a nutshell, he doesn't want to waive privilege in all of the negotiation communications, since it may be inconsistent with the way he's been framing this thing for a while.

Anywho, I may have some detailed comments later on. The skinny of it is that if Cohen believed there was an incipient breach of the contract then of course he'd be communicating with Davidson about that.

[onenote]

4. Agreed.

we're only seeing what Avenatti wants us to see and we haven't seen the complaint (at least I haven't).

Sure, it could be as bad as he is making it appear. Or it could be that Davidson and Cohen were trying to settle a possible claim against Daniels for violating the NDA by having her appear on Hannity and say some stuff. In which case "collusion" would be a harsh way of describing what lawyers do all the time.

[jberryhill]

6. Here it is

http://media1.s-nbcnews.com/i/today/z_creative/FiledComplaint.pdf

Yeah, what you said. I'll have to go back to the hush agreement and see if there was a "further acts" obligation to effectuate the purpose of the agreement or not.

It probably plays well in the media, since in the popular imagination opposing counsel are supposed to be emotionally invested and act angry toward each other or something.

Of interest is that he doesn't claim that Davidson and Cohen were collusively negotiating the contract in October.

[pnwmom]

8. Here is the hush agreement. I see no clause about any "further acts"

she'd be required to do, other than handing over all the materials she has and promising to keep the information confidential. Nothing that would require her to go on Hannity and tell falsehoods.

http://tmz.vo.llnwd.net/o28/newsdesk/tmz_documents/stormy-daniels-sues-trump-redacted.pdf

Is an attorney allowed to withhold from his client discussions with the opposing attorney that have a bearing on things her attorney is suggesting that she do? For example, can Keith Davidson tell her she should go on TV and deny the story to Hannity without mentioning to her that he'd arranged for that appearance after discussions with Cohen? And without being clear to her that nothing in the NDA requires her to go on TV to back up Trump's false story?

[jberryhill]

9. We only see as much of the discussion as has been chosen to frame the complaint

And some of the written communications may have been in parallel before or after telephonic ones.

Be that as it may, there is no further acts obligation that I can see. It does refer to further execution of documents to effectuate the terms, which would have been better expressed as "purposes", but the thing is a drafting trainwreck anyway.

Nothing that would require her to go on Hannity and tell falsehoods.

Nope. Did she? I don't seem to recall her going on Hannity. Going back to the timeline just off the top of my head, the first time the Stormy Daniels story surfaced was in October. That was because the friend of hers at the tournament who they had invited to the room was telling her story (and was one of the exempted parties in the agreement), and that's when we first saw that picture of the two of them at the golf event surface in the media.

The interesting part of this complaint is that it takes no issue with the representation of Davidson and alleged collusive negotiating in October when the document was drafted. There are likely reasons for that.

This one starts out in something like January 16. The WSJ article digging up the InTouch interview was something like January 12. So there was obviously some concern that reporters were going to start asking Daniels questions, and the agreement is pretty broad on non-disclosure and general non-"acting coy", for want of a better term.

If she didn't go on Hannity, then I don't even see what the issue is. But, sure, when you have a client that has entered into an NDA and some sort of unforeseen circumstances come up, it is perfectly appropriate to contact the other attorney and discuss possible ways of dealing with them. It's pretty obvious that by the 16th, after the WSJ story broke, that there would be some concern about "what sort of things should she say or do in the event that reporters start hounding her?" and there's nothing wrong with discussions between the attorneys on that subject. If I were Davidson, I'd be suggesting things like "throw in another $50k per media appearance to deny it and I'll run it by her", but opposing counsel have discussions about possible issues and proposals all of the time.

She's in the business of getting paid to act. If I were her attorney, and someone wants to pay her to act, then why would I not discuss it with whomever is proposing it?

For example, if I'm having a settlement discussion with opposing counsel, then the first thing I do is to have a long discussion with my client about what sorts of things might come up, and what the goal of the negotiation is. Once in a while the other side comes up with a novel idea and, no, I don't say, "Oh, we have to stop so I can call my client." Normally, it would be along the lines of fleshing out the novel proposal some more, discussing what sorts of conditions I'd want to see on it, what I think they might go for, but it's understood that the context is that any tentative proposals discussed between counsel would have to be approved by the client anyway. And, no, those sorts of discussions wouldn't look "hostile" at all. Sometimes I have opposing counsel whom I know very well. Sometimes they are friends (since I work in a highly specialized area where a lot of the attorneys know one another anyway), sometimes they are people I don't particularly care for, but none of that is at all material to advancing the client's interests.

Is there a problem if opposing counsel are friends? I don't see why there should be. It's a freaking job. When you play a game of cards, or basketball, or whatever with your friends, do you help them win? Of course not. You play to win, whether they are your friends or not.

For example, can Keith Davidson tell her she should go on TV and deny the story to Hannity without mentioning to her that he'd arranged for that appearance after discussions with Cohen? And without being clear to her that nothing in the NDA requires her to go on TV to back up Trump's false story?

On the first question, again, I'd certainly have been suggesting that any proposed affirmative act have a price tag attached to it. But did she go on Hannity anyway, or did Davidson even tell her to go on Hannity? I've been pretty busy lately and haven't digested the allegations in this complaint in great detail.

Here's the sort of problem that started coming up:

I can't recall if she had done any other media interviews prior to that appearance on Kimmel, but as far as there being "nothing in the NDA" requiring any further acts, and if she had been making similar sort of "teasing" statements prior to January 30 then, sure, it's pretty easy to see a situation where Cohen would be claiming that, in his view, she was breaching the agreement and saying something to the effect of "We can go after the liquidated damages now, or we'll let it slide if she does X" where X is sign a denial or make an appearance to give a denial. That would be an appropriate discussion for Cohen to have with Davidson, and would be an appropriate proposal for Davidson to say, "They are claiming you are breaching the agreement and they are going to enforce it. But they will refrain from enforcing it if you do (whatever it is)."

I mean, quite obviously, if Cohen was concerned that she might be breaching the agreement, then it certainly would not be appropriate for Cohen to get in touch with her directly. So any discussion about potential breach and acceptable curative statements would have to take place between the attorneys first, no matter what was going on.

But I can't for the life of me understand why a hypothetical discussion about going on Hannity is an issue in the first place. She didn't go on Hannity. But if I represented a client whose career is based on media exposure - and mainstream media exposure is great for adult performers since it is often hard for them to get - and someone calls me up with the proposition that they can get that client on a cable news show, I'm certainly not going to say "FU" and hang up the phone. It would be irresponsible not to discuss whatever proposal the other side had to make. And that's one of the nice things about having an attorney in a negotiation, since the attorneys can pretty much discuss anything at all to see if the other side bites, but nobody is bound by anything until the ink is on the line. As an individual, it is harder to avoid making what might be a binding agreement or admission unintentionally.

As far as informing opposing counsel that the client intends to hire other counsel and go in a different direction, there's nothing in principle wrong with that either. It can be a good negotiating tactic, since it let's you play good cop / bad cop, with only one cop. For example, I have a client who was in a dispute with another party, and who wanted me to negotiate an agreement with the other side. I did not agree to represent that client if the matter went to court, but did agree to see if a settlement was possible. When the other side would get uppity, I'd remind him that "Hey, if you want to go to court, feel free, but it's not going to be me you'll be talking to for the rest of the year over it."

If somebody has a reason to go to court, they can go to court whenever they want. If I, or any other attorney, had a nickel for every time we heard something like, "Well, my client is going to hire a litigator next week and go to court if we don't sort this out" we wouldn't even have to bill our clients.

But, anyway, no, it would be inappropriate for Davidson to say, "you have to do this" if she didn't have to do it. It would not be inappropriate for Davidson to say, "they are claiming breach but will let it slide if you do this, so it might be a good idea for you to do this. But it's up to you what you want to do."

I had to have that conversation very recently, in fact. A client did not like the course of action I was advising and started getting sort of upset with me and I had to remind that client that I'm not God or their parents, I'm just someone giving the best advice to offer. It's not like lightning will strike them dead if they don't do what I'm suggesting, and of course I'll help them deal with the fallout if they decide to do something else. They're clients, not marionettes.

IMHO the interesting part of the complaint is that it doesn't suggest anything about the October negotiation itself having been collusive. I believe there are reasons for that, but my evening playtime is over.

And, importantly, I've only given the complaint a quick once-over skim, so there are certainly things I could have missed.

[jberryhill]

10. You may find this interesting

https://www.democraticunderground.com/100210708093

What's interesting about Davidson's reaction overall is that it pretty much sounds like what I would have guessed (and posted above) on the basis of just looking at those communications without the framing.