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.