Daniels v. Avenatti: The Advance Authorization Defense

The media is replete this week with stories of the “demise” and “fall” of attorney Michael Avenatti, who skyrocketed to fame in his representation of porn star Stephanie Clifford, aka Stormy Daniels. Avenatti’s skill at both litigation and public advocacy led to calls for him to run for president. That was before Avenatti became embroiled in a public rift with his live-in girlfriend, who alleged physical abuse, and then allegations of unethical conduct by Daniels.  It often seems that people enjoy only one thing more than a meteoric rise of a celebrity: the later fall from a great height. In this case, those declaring the ethical case as a threat to Avenatti’s license should look closer at the known record.

As a threshold matter, I should disclose that Avenatti is my former law student and worked with me at George Washington University.  I will not deny a bias for my former students and I have always been proud of his success as a litigator, including major wins in difficult cases over the years.

Despite that bias, I have covered the Avenatti controversies and I was highly skeptical of the grounds for the now dismissed defamation lawsuit against President Donald Trump. However, the coverage of the Daniels’ allegations has largely ignored some obvious problems with her account against Avenatti.

Daniels alleged that she has been denied accounting information on legal defense funds raised through crowdfunding sites and that Avenatti filed the defamation action “against my witnesses.”  She also says that “he has spoken on my behalf without my approval.” An examination of the relevant dates and Daniels statements however undermine those allegations and Daniels yesterday said, on the money disputes, that she and Avenatti “straightened s— out” on the fundraising. That leaves the allegations of a lack of consent on media statements and the filing.

Attorneys do not ordinarily call clients for approval for public statements made in the course of litigation. California bar rules allow attorneys to proceed on the basis of “advance authorization” given at the start or during representation, subject to a client’s right to limit the purposes of representation at any time.

Moreover, California bar rules require “A member shall keep a client reasonably informed about significant developments relating to . . .  representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.” Avenatti could not file without the consent of his client, though he is limited in what he can disclose by confidentiality rules.  That and brings us to what we knew from Daniels herself.

The defamation lawsuit was filed on April 30, 2018.  That date is important.

Daniels gave numerous interviews after the filing praising Avenatti and expressing support for the litigation strategy.  The filing received considerable media attention and Daniels never expressed anything short of enthusiasm and satisfaction.

Indeed, on July 10th, Daniels gave an interview about Avenatti where she stressed that “look, if I didn’t think Michael was going a good job, I would fire his ass.”  She then added “every time I watch him work, I think, this is what it must have been like to see the Sistine Chapel painted. But instead of paint, Michael used the tears of his enemies.”  Putting aside the cringe-worthy image of Avenatti painting the creation with the tears of Trump, this was two months after she claims that Avenatti filed the action against her wishes.

In September 2018, Daniels made a joint appearance on ABC’s The View with Avenatti and expressed total support.  Then, on October 8th, Daniels gave an extended interview with CNN’s Don Lemon. When Lemon asked if Avenatti’s media appearances were a distraction, Daniels said “No. You know what? That’s one of the things that I read a lot, you know, people send me messages and they think that Michael has abandoned me or I’m not important to him anymore or this or that. We are in contact every single day, almost, you know, three or four times a day sometimes, and I will message him about other things that are going on, other problems, this or that. This person did this or that, and he always puts me first.”  That was just two months ago and five months after the defamation filing.

Avenatti is also not the only person who is the subject of Daniels’ accusations.  Daniels has accused the man that she reportedly called her “Gay dad” of stealing money from her.  Keith Munyan and his partner, J.D. Barrale, have been accused of withholding money from a merchandise website that they operated on Daniels’ behalf and have complained about heated text messages from her ex-husband. They insist that “what she has done to Michael Avenatti publicly she has done to us privately for the past month.”

While Daniels may have more to offer on her accusations, what she has offered thus far is conflicted and insufficient for a bar charge.  Indeed, her attacks (including attacking another man who she reportedly once called her “Gay Dad” over allegedly stealing money from merchandise) only diminish her credibility in the fight with Trump.  No case is stronger than one’s client and Daniels is (not surprisingly) a less than ideal client.

Avenatti is not the first attorney to be propelled into celebrity status by a case or the first to allow those powerful winds to carry him into a high orbit. However, usually an attorney advances to new positions after a case is completed.  The line of professional advocacy and personal advancement can become blurred when both occur simultaneously.  That is particularly difficult when the client is leveraging her own higher visibility in a controversy.

For Avenatti, this matter must now be clarified.  The original non-disclosure agreement controversy with Trump may be coming to a long-overdue end – with the bar license of Trump lawyer Michael Cohen.  Even absent such a change, Avenatti should sever Daniels as a client given the public accusations.  The first requirement for representation is clarity and consent on the objectives of the case.  To control a case a lawyer must be able to control his client. At this point, Daniels clearly lacks is trust and Avenatti clearly lacks control. (Trump counsel is now seeking $800,000 in fees and penalties in the original dispute so it may be hard for Avenatti to simply drop Daniels in the midst of the litigation until she has new counsel).

Of course, even if the ethical claims collapse, it is not clear what the future may be for Avenatti. However, the uncontrollable glee of critics of Avenatti in this controversy has far outstripped the available evidence on his imminent disbarment.

34 thoughts on “Daniels v. Avenatti: The Advance Authorization Defense”

  1. The standards for fame are below ground level and not really worth discussing outside the supermarket tabloids .

  2. “However, the uncontrollable glee of critics of Avenatti in this controversy has far outstripped the available evidence on his imminent disbarment.” – JT

    There is no critic of Avenatti with more glee in his demise than Tucker Carlson who smears him as the “creepy porn lawyer.” I wonder how Avenatti feels about JT frequenting Carlson’s show. JT is no friend to Avenatti by legitimizing this sophomoric prevaricator.

    1. Jeff,

      Avenatti, I’ve never meet him. What’s your issue here, that Avenatti comes off to a lot of people like me as being a Creepy person or the fact he’s also a Porn Lawyer?

    2. Jeffery Silberman:
      The “sophomoric prevaricator” draws an average of 2.9 million viewers a night. Even JT watches. How’s your ratings?

      1. mespo727272 says: December 4, 2018 at 6:22 AM

        “The “sophomoric prevaricator” draws an average of 2.9 million viewers a night.”

        There’s no shortage of gullible idiots.

  3. Michael Avenatti was JT’s former law student? If he were my former law student, I would be too ashamed to broadcast it!

    1. JT is to be applauded for a sense of personal loyalty and teacher’s pride, which he openly confessed. Good for Turley! It shows he is a human and a natural man. I don’t share his like of Avenatti– but Turley is man of flesh and bone and not a complete fake like so many others in academia.

      I wish I had some real man like that for profs. I had some good ones, women and men both, but when I needed a question answered a couple times after law school they were all too busy. Well, ok! I got better answers from practicing lawyers anyhow . But that’s the kind of people they are.

  4. Well that’s interesting. JT’s post from this morning: Cohen Asks For No Jail Time Because He Has “Re-Point[ed] His Internal Compass True North” has vanished. That was not long after I posted JT’s own difficulty in recognizing Avenatti’s ethical challenges these last several months. Coincidence?

  5. “Avenatti is not the first attorney to be propelled into celebrity status by a case or the first to allow those powerful winds to carry him into a high orbit.”

    Oh there’s being “propelled” and then there’s waiting inside the cannon with your flag-emblazoned flight suit and tight-fitting helmet anxious for the cannoneer to light the fuse as the air raid spotlights flash and track your every move. From Avenatti’s website: “Michael often works closely with the press and media in connection with his legal practice – an area in which most lawyers falter and under-utilize. During his career, he has represented parties in a number of lawsuits that have gained international media attention ….” Hardly the shy, naive Forest Gump bumpkin cast into the limelight by his Lady-in-Red client. Not sure who is the person with the most ill-repute in this pairing of lawyer and client.

    As for the authorization to sue, it should be easy enough to show the copy of the suit sent to the client to proof-read before filing. I’ll take a cover letter here, MIkey. And do you really want to go into dealings with third-parties when it comes to Stormy versus Avenatti aka Creepy Porn Lawyer (CPL)? (Stormy claims she’s been defrauded by her “Gay Dad.”) Mareli Miniutti, Avenatti’s live-in girlfriend, claims to have been assaulted twice by Avenatti and won a restraining order against him. Her photos are there for all to see along with this incriminating school yard statement at the scene by CPL courtesy of the LAPD: “She hit me first.” BTW the cops said 20-something Minutti’s face was swollen and bruised. (Obviously she ran into the door bringing coffee to her beau.)

    Avennati with his monstrous ego, incessant self-promotion, unending TV appearances and proclivity to say just about anything that floats through his cerebrospinal fluid renders him a parody of lawyers unlikely to gain any respect from the public at large or even lots of hard-working lawyers who find trial by press about as civilized as trial by combat. He’s a drag on the profession not a shining light and the efforts to recast that are doomed to fail because Avenatti just can’t help himself. He’s the poor kid made-good and the world becomes his adversary. As is said of populist politician Willie Stark in Robert Penn Warren’s, All the King’s Men: “An ambitious man is a man who wants other people to think he is great.”

    All in all Stormy deserves Avenatti and vice-versa. I don’t believe anything she says and, by extension, vice-versa.

  6. ” Avenatti’s skill at both litigation and public advocacy led to calls for him to run for president.”

    This demonstrates how flighty the Democratic Party is today.

    ” However, the coverage of the Daniels’ allegations has largely ignored some obvious problems with her account against Avenatti.”

    I think Professor Turley’s accounting of the Avenatti / Daniels dispute demonstrates an unfairness to Daniels. Daniels is not well educated and doesn’t know how to use the press. Avenatti has that experience. Unless the Professor interviewed Daniels personally his account merely augments the bias in favor of Avenatti who knows how to use the press. I dislike both parties, but Professor Turley is a law professor and should recognize the inequality of the two in that one party has a marked advantage over the other making his evaluation questionable since he didn’t interview the one with inferior skills of self promotion.

    Additionally, since Avenatti was a student The Professor should recognize that more attention should be paid to ethics and morality.

    1. Oh, Stormy Daniels is very savvy in mass media manipulation, and she played Avenatti in this, he’s her mark in a way, that’s my actually suspicion. She did what she did on camera to him, too, all publicly, just the way she likes it, and it keeps her name in the spotlight.

      Stormy, a wicked lady and a shame to all discrete and professional sex workers who ply their trade in private where it belongs.

      As for whether or not a lady could run a “long con” for two years oh YES you betcha that’s possible. Women can run a long con for decades so long as the mark is paying the freight along the way!

      1. “Oh, Stormy Daniels is very savvy in mass media manipulation”

        Her manipulation is limited. She can create a tent but no permanent living facilities. You overrate her when it comes to Avenatti, but she starts from zero working in an upward direction while Avenatti is already spiraling down.

        1. she was “earning ink” that is to say, getting free advertising, for her stripper tour. that’s what most of it was all about. she probably didn’t want to go after trump at first because a lot of her fans are men who like trump. but she had to go with what would get her the most ink. that’s key for celebrity appearance industry participants.

          avenatti wanted to go that way too, I bet he liked the easy money at first, but if you want to be a real lawyer you gotta stay focused on your day job not the other stuff. he got lost in the fame.

          the good news is, other lawyers and courts will welcome you back if you just learn to STFU and do your job. and stay off tv. maybe other people won’t forgive you but Our Thing sees a lot of ups and down and there’s more forgiveness to go around than others might suspect.

      2. Mr. Kurtz, Your theory on Avenatti ironically being Daniel’s mark all along is the version that I would like to see made into a movie. Could not have happened to a nicer guy.


    Peter Strzok to Lisa Page, “We’ll stop it.”

    Lisa Page to Peter Strzok, “POTUS wants to know everything we’re doing.”

    Lisa Page to Congress, “The texts mean what the texts say.”

    John Solomon
    The HIll

    Back in the mafia’s heyday, FBI and IRS agents had a set of surveillance rules.

    If one mobster showed up in town, pay notice. If two arrived, be suspicious. If three or four were in the same vicinity, something was going down.

    And if five or more headed to the same neck of the woods, a meeting of consiglieri or La Cosa Nostra’s council was likely happening. (This, because there were always five families in New York and some adjunct families elsewhere that made up the council’s leadership.)

    There also was another rule of thumb: Mobsters would always have the same calling card, or excuse, to be in town. Attending a funeral (the mid-1980s mob meeting in Chicago) or a vacation in the sticks (the infamous 1957 gathering in upstate New York) were some of the more memorable ones.

    Early in my reporting that unraveled the origins of the Trump-Russia collusion probe, tying it to Hillary Clinton’s campaign and possible Foreign Intelligence Surveillance Act (FISA) abuses, I started to see patterns just as in the old mob meetings: FBI or intelligence-connected figures kept showing up in Trump Town USA during the 2016 campaign with a common calling card.

    The question now is, who sent them and why?

    Interviews with more than 50 witnesses in the Trump case and reviews of hundreds of pages of court filings confirm the following:

    At least six people with long-established ties to the FBI or to U.S. and Western intelligence made entrees to key figures in the Trump business organization or his presidential campaign between March and October 2016;

    Campaign figures were contacted by at least two Russian figures whose justification for being in the United States were rare law enforcement parole visas controlled by the U.S. Justice Department;

    Intelligence or diplomatic figures connected to two of America’s closest allies, Britain and Australia, gathered intelligence or instigated contacts with Trump campaign figures during that same period;

    Some of the conversations and contacts that were monitored occurred on foreign soil and resulted in the creation of transcripts;

    Nearly all of the contacts involved the same overture — a discussion about possible political dirt or stolen emails harmful to Hillary Clinton, or unsolicited business in London or Moscow;

    Several of the contacts occurred before the FBI formally launched a legally authorized probe into the Trump campaign and possible collusion on July 31, 2016.

    The recipients of these overtures are all household names, thanks to the infamy of the now very public probe — Paul Manafort, Donald Trump Jr., Michael Cohen, Carter Page, George Papadopoulos, Michael Flynn, Sam Clovis and Roger Stone, to name a few.

    Some of the instigators of the contacts have been acknowledged in public: Professor Stefan Halper, Russian businessman Hank Greenberg, former MI6 agent Christopher Steele and former FBI informer Felix Sater, who is “Individual 2” identified in the Cohen plea deal this week.

    Others I identified through interviews, but U.S. officials have asked me to keep them private to avoid compromising their identities or nexus to intelligence and law enforcement work.

    The chances that so many would converge into then-candidate Donald Trump’s circle, in such a short period around an election, are about as rare as winning the Mega Millions lottery. In other words, most were not coincidences. A few, maybe, but not all.

    And that leaves the biggest question: Who dispatched or controlled each emissary?


    The Obama Coup D’etat in America:

    The most prodigious abuse of power and scandal in American political history.

  8. Stormy aside, Avenatti does not look good with the large judgment against him by his former law partner and his eviction from his law offices for unpaid rent or tax problems. I would not want anything to do with this lawyer or the clients he picks.

  9. Here’s my take on this mess and I admit I don’t like Avenatti

    a) he is presumed innocent and any big abuse stories by unhappy girlfriends are as reliable as stories by ex wives which is to say they are biased and generally NOT very reliable and often undertaken for patently self interested reasons like advantage in divorce proceedings. So, lawyer up and shut your trap about it. Now, “nothing to say” and 5th amendment, no more than that. Quit talking.

    b) fire stormy as client immediately she stabbed you in the back

    c) if you forced the case on Stormy then you made a big foolish mistake and now you reap the consequences.

    ADVICE NOW invoke PL coverage and hire lawyer to self report ethics violation in respect of Stormy and whatever else, get it moving fast and salvage your license with whatever discipline they lay on you

    d) pay back your creditors, pull in your wings, and quit living like a king

    e) quit messing with the POTUS you got your own problems to sort out


  10. Michael seems to be a con man. He can not pay the IRS, his business partners, his landlords, his child support, his live in young girlfriend etc. Stormy alleged similar malfeasance and recklessness; which she apparently has recanted on. But he has proven repeatedly that he can call upon ex-wives to have them recant allegations of emotional abuse, or reach out to ‘gay dads’ and appear the victim, or again as mentioned call Daniels to have her recant.

    As much as he forced Stormy to bring a case she wasn’t comfortable with (though she obviously backed it once it went ‘live’), he’s evidently also put words in the mouth of Julie Swetnick and another unnamed person related to the Brett Kavanaugh allegations he raised according to statements made by both.

    He’s blamed Jacob Wohl for fabricating an arrest by the LAPD subsequent to a detective-led investigation into allegations raised by his live in girlfriend of close to a year, implausible as that may be. To think Wohl had the money to implant a ‘deep cover prostitute’ with Avenatti for so long is completely implausible.

    Deep ethical questions have been raised about how he obtained the materials to implicate Michael Cohen and for his unprofessional behavior in approaching Cohen in a public restaurant, this apparently brought him into the focus of the Special Counsel.

    He received 2 separate criminal referrals from (the admittedly Republican-controlled) Senate Judiciary committee.

    Beyond this, few people know about his representation of Mark Burton / Cathriona White which was thrown out for false evidence related to her death — a false case related to celebrities and high levels of the Church of Scientology.

    However, taking it all in perspective since then, it seems to confirm a picture of him as a total sham. We can only assume there are many more transgressions and hypocrisies we’re unaware of.

    Only someone taken up by this sham might defend him at this point; however I can appreciate how someone proximate to him may be taken in by his apparently psychopathic and parasitic con man lifestyle.

  11. Avenatti’s past financial problems including failure to pay partners, clients, and a bankruptcy, made him ripe for recruitment by deep state swamp creatures:

    “In 2018, Avenatti’s law firm was subjected to a $10 million judgment in U.S. bankruptcy court.[51] Avenatti has also defaulted on a $440,000 judgment in back taxes, penalties, and interest that he was personally obligated to pay under another bankruptcy settlement. The U.S. Attorney’s office asserted in court that a motion seeking payment would soon be filed against Avenatti.[51] Eagan Avenatti had been in Chapter 11 bankruptcy proceedings and, in December 2017, had agreed to pay $4.8 million in unpaid fees to a former partner, $2 million in back taxes, and $1 million to other creditors.[52] In June 2018, the former partner filed a motion in U.S. bankruptcy court asking for a lien on any and all legal fees Avenatti’s firm might collect, up to $10 million, from clients in 54 cases including his representation of Stormy Daniels.”


Comments are closed.