President Trump‘s personal lawyer Michael Cohen is under fire this week after The Wall Street Journal reported that Cohen used what appear to be shell companies and fake names to pay a porn star called Stormy Daniels $130,000 as part of a nondisclosure agreement. Daniels states in a prior but unpublished interview that she had an affair with Trump that began shortly after Trump married Melania Trump and had their son Baron. She said that the affair lasted roughly a year and the money was paid during the campaign around the time of the release of the disturbing Access Hollywood tape. Cohen has previously denied any affair and insisted that both Daniels (whose real name is Stephanie Clifford) and Trump deny any sexual relationship. The new information has led some to question Cohen’s veracity and the role of an attorney in maintaining such a denial if the representation is untrue. I am less confident that a clear ethical line was crossed by Cohen simply because he used such companies or has maintained the denial of any relationship.
The Wall Street Journal reported that Cohen used a company named Essential Consultants LLC to send the money to Stormy Daniels’ as part of the nondisclosure agreement Both Cohen and Daniels’s lawyers used pseudonyms in executing the deal in October 2016. That was just weeks before the election.
The role of counsel in such a matter is not as clear as some critics have maintained. A lawyer is allowed to advance the position of his client and Cohen repeatedly asserted, including recently, that Trump “once again vehemently denies” such an affair. Cohen added that these are “outlandish allegations against my client” and that the newspaper has “attempted to perpetuate this false narrative for over a year; a narrative that has been consistently denied by all parties since at least 2011.”
Reporters however have said that there are witnesses to elements of the story and that Daniels was given and passed a lie detector when she went into great details about the affair, including rather seedy elements.
For our purposes, the most interesting element is the role of the lawyer. If (for the sake of argument) Cohen believed that there was an affair, would he be ethically barred from making these public comments? The answer is probably not. His client is reportedly telling him that there was no affair and, regardless of what Daniels told In Touch magazine (in an interview that will now reportedly run), she signed a statement denying any such affair.
The use of shell companies and fake names is also not clearly an ethical violation. Sometimes lawyers use such companies to protect their clients, such as when a company is buying land but does not want that fact to be known publicly. Moreover, an agreement of this kind is clearly designed to avoid a public scandal (true or not). Cohen worked to execute the agreement without defeating its purpose with a public disclosure.
Could there be ethical issues arising for Cohen? Yes. This is a precarious role to play for an attorney. This is not just some divorce case or strike suit. The agreement concerned a matter of great public concern over the integrity, morality, and veracity of a candidate for the presidency of the United States. Moreover, there is always a concern of where such funds came from in securing the silence of someone like Daniels.