Michael Cohen: when does advocacy become unethical?

News, Politics

Everyone who hires a lawyer expects zealous representation. You assume your attorney will vigorously protect your interests; after all, professional ethics require no less. But would you anticipate your lawyer paying tens of thousands of dollars of their own money to shield you from a potentially embarrassing story about your personal conduct?

That’s what President Donald Trump’s personal lawyer, Michael Cohen, claims to have done. According to Cohen, he paid Stephanie Clifford – an adult-film actress who goes by the stage name of Stormy Daniels – $130,000 out of his own pocket to prevent her from talking to the press about an alleged encounter with Trump.

Cohen made the admission in response to a complaint filed with the Federal Election Commission by Common Cause, a liberal advocacy group, which maintains that Cohen’s largess amounted to a campaign contribution far beyond the $2,700 maximum allowed for individuals. Whether that complaint is upheld or not, Cohen’s action raises some interesting questions about the attorney-client relationship.

As any fan of Law & Order knows, the attorney-client relationship is unique. Information that a client reveals to an attorney is confidential and cannot – with rare exceptions – be revealed by the attorney. (The best-known exception is when a client tells the attorney of plans to commit a crime.) But the special nature of the attorney-client relationship extends beyond confidentiality. An attorney is expected to act in a client’s best interest, so long as doing so does not break any laws.

There is nothing illegal about a lawyer giving away their own money to benefit a client. But is it ethical under the rules that govern the professional behavior of attorneys; in this case, the Rules of Professional Conduct of New York state? If Cohen’s actions can be shown to have violated those rules, he could be censured or even stripped of his law license.

An analysis by the New York Times points to two potential ethical violations by Cohen, both related to the rule that governs attorney-client financial arrangements. One provision bars attorneys from lending money to clients during pending litigation. So, if the $130,000 was, in fact, a loan from Trump or the Trump organization (which Cohen denies), it might have violated that provision. Except that Clifford/Daniels was not threatening to sue – just to spill her story to the tabloids. In that case, the putative loan could run afoul of another provision, which stipulates that a loan between an attorney and a client be detailed in a written agreement.

However, Cohen insists that the $130,000 was not a loan from anyone – that it was his personal money that he paid to protect candidate Trump from a salacious story.  In which case, the Common Cause complaint comes into play, as the $130,000 could arguably be construed as an illegal campaign contribution.

However this plays out, Cohen’s actions raise serious legal and ethical questions regarding attorney-client relationships. Sure, we all want a lawyer who’ll fight tooth-and-nail for us, but few of us are likely to find one who’ll reach deep into his own pocket to protect our reputation.