New disclosures create a whole new problem for Michael Cohen, his attorney, and Donald Trump

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Previously, we wrote about some questionable interactions between Keith Davidson, former attorney for Stormy Daniels, and Michael Cohen, the fixer for Donald J. Trump. Michael Avenatti posted an additional interaction between the two that took place on January 23, 2018. These disclosures continue to raise questions about the nature of the relationship between the two lawyers.

Even after a relationship ends with a client, the lawyer’s duty of confidentiality continues. Model Rule of Professional Conduct 1.6, Comment 20, provides that such duty “continues after the client-lawyer relationship has terminated.” In addition, it is very unusual for lawyers on opposite sides of a transaction or litigation to keep the other apprised of developments and communications. In this instance, the disclosure by Avenatti of the exchange raises some significant questions about independence of counsel and would also appear to advance the arguments of Avenatti to the Southern District of New York about Cohen potentially having attorney-client information of Avenatti’s client, Ms. Daniels. (Avenatti earlier in the week had sent a letter to Cohen’s attorneys asking for the release of such information immediately.)

The latest exchange originated in an email from Brian Todd from CNN to Davidson and a Ms. Duarte. Todd informs the two at the law firm: “I’m reporting today on the Common Cause complaints, alleging that the reported 2016 payment to Stormy Daniels constitutes a campaign finance violation.” Todd then asks for comment about the story and also about the potential source of the funds that Cohen or Trump used to pay Ms. Daniels.

There is no apparent response from Davidson. The email, timestamped “January 23, 2018 9:13 AM,” is instead almost immediately forwarded to Michael Cohen at his personal email address, [email protected], with a timestamp of “1/23/2018 9:14:36 AM,” a minute after Davidson received it. The email appears to be forwarded by Davidson. It simply states, “FYI.”

Perhaps there is a legitimate explanation of why Davidson immediately forwards anything he receives from any media or anyone asking questions to Cohen, who was on the opposite side of the dispute between Ms. Daniels and Mr. Trump. Davidson must explain why he felt compelled to keep the opposing counsel’s attorney up to speed on anything related to his former client.

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