Michael Avenatti, counsel for Stormy Daniels, is having a seriously bad month. He was earlier accused of domestic battery by a girlfriend, who secured a restraining order last week. (The police declined to bring a felony charge in the case). Now, Daniels has gone public with accusations that Avenatti solicited donations without her approval and did not reveal where the money has gone. In perhaps the most serious allegation, she alleges that Avenatti sued Donald Trump for defamation in her name but without securing her approval. (For full disclosure, Avenatti is my former student and I have previously praised his impressive success as a lawyer.
While I acknowledge my bias in having a long association with Michael, much more needs to be known before we can judge whether an ethical violation has occurred. Avenatti has said that he and his firm have not taken a dime in legal fees and gave an account of expenditures on Daniels.
Much of this depends on the representational agreement. Some clients can authorize counsel to take actions as deemed necessary in the course of an approved litigation rather than requiring constant conferral and approval for every litigation move. Ironically, Donald Trump has argued that he gave Michael Cohen essentially such carte blanche to act on his behalf. We have not seen the agreement or later communications on the scope of the representation and any authority given to Avenatti. The reason why Avenatti believed that he had authority to file will have to be established through either the original representational agreement and any later communications with the client, including any clear instructions not to file.
This is clearly not an insular part of the original litigation over the nondisclosure agreement with Trump but a new filing. Any new filing should be made with express consent of a client. A filing represents that the cause of action and underlying arguments are being made on behalf and with the knowledge of one’s client. The California bar rules are similar to those of other states on this point:
“A member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.”
Daniels told The Daily Beast:
“For months I’ve asked Michael Avenatti to give me accounting information about the fund my supporters so generously donated to for my safety and legal defense. He has repeatedly ignored those requests. Days ago I demanded again, repeatedly, that he tell me how the money was being spent and how much was left. Instead of answering me, without my permission or even my knowledge Michael launched another crowdfunding campaign to raise money on my behalf. I learned about it on Twitter.
“I haven’t decided yet what to do about legal representation moving forward. Michael has been a great advocate in many ways. I’m tremendously grateful to him for aggressively representing me in my fight to regain my voice. But in other ways Michael has not treated me with the respect and deference an attorney should show to a client. He has spoken on my behalf without my approval. He filed a defamation case against Donald Trump against my wishes. He repeatedly refused to tell me how my legal defense fund was being spent. Now he has launched a new crowdfunding campaign using my face and name without my permission and attributing words to me that I never wrote or said. I’m deeply grateful to my supporters and they deserve to know their money is being spent responsibly. I don’t want to hurt Michael, but it’s time to set the record straight. The truth has always been my greatest ally.
“My goal is the same as it has always been—to stand up for myself and take back my voice after being bullied and intimidated by President Trump and his minions. One way or another I’m going to continue in that fight, and I want everyone who has stood by me to know how profoundly grateful I am for their support.”