Judge Tells Avenatti His ‘Publicity Tour’ Is Endangering Michael Cohen’s Right To A Fair Trial

Judge Tells Avenatti His ‘Publicity Tour’ Is Endangering Michael Cohen’s Right To A Fair Trial

The status conference focused on the ongoing review of the seized documents. Cohen’s legal team said they had analyzed about one-third of the material, or about 1.3 million files in total.
Margot Cleveland
By

Federal judge Kimba Woods held a conference Wednesday to discuss the status of the government’s production of documents and electronic records seized last month by the FBI from Trump attorney Michael Cohen’s office, hotel room and home. Cohen had initiated the proceedings to protect any privileged attorney-client communications, and attorneys for President Trump and the Trump Organization intervened in the lawsuit to protect the confidentiality of their clients’ communications.

The status conference focused on the ongoing review of the seized documents. Cohen’s legal team explained that they had analyzed about one-third of the material, or about 1.3 million files in total. Cohen’s attorneys added that they had provided copies of the documents to the lawyers representing Trump and the Trump Organization for their review. Any documents claimed to be privileged Cohen then submitted to a special master who made an independent assessment concerning whether the materials were protected by attorney-client privilege. To date, the attorneys have submitted “six sets of materials” to the special master designated confidential.

This process differs from the norm, where a government “taint team” walled off from the prosecutors and investigators reviews materials seized to assess whether they are protected by attorney-client privilege. But late last month Woods agreed to appoint a special master to independently handle this assessment. Cohen and government lawyers agreed with this approach and also agreed to split the cost of the special master, who bills at an hourly rate of $700.

While the main event for the status hearing concerned the completion of the review process — the government succeeded in setting a June 15 deadline — the side show proved more entertaining. Michael Avenatti, the attorney representing Stephanie Clifford, known as “Stormy Daniels,” made a cameo appearance, but for what (legitimate) purpose remains unclear.

Avenatti had filed a motion to intervene in the case to protect Daniels’ interests and lodged a second motion to appear before the court pro hoc vice (“for this occasion” in Latin). That status allows an attorney to represent a client in a jurisdiction in which they are not a member of the bar. Typically, a court will perfunctorily grant a motion to appear pro hoc vice, but in this case, Cohen’s attorneys filed a motion in opposition to the request based on Avenatti’s “reckless and improper” conduct.

During the hearing, Cohen’s attorneys detailed Avenatti’s release of confidential bank records of their client, as well as two unrelated “Michael Cohens,” one a gentleman living in Tel Aviv, and the second a Canadian aid worker. Cohen’s legal team also noted that following the release of the banking records, media coverage had saturated the story, making it harder for Cohen to obtain a fair trial. They also stressed that attracting media attention was Avenatti’s M.O., noting “he is involved in ways that call attention to himself, his 170 appearances on television — 74 on CNN, according to a recent report.”

Avenatti’s response to the court? That “95 percent” of what Cohen’s attorney argued was “without any evidentiary basis,” which was a laughable response because of course it was without an “evidentiary basis” — the court had not held an evidentiary hearing!

Judge Woods quickly put Avenatti in his place, telling him that she had a different view concerning his professional responsibilities:

In my view, this matter, which is a potential precursor to a criminal trial if charges are filed against Mr. Cohen, I believe that once you are participating in this proceeding, you are subject to New York Code of Responsibility 3.6 and the local rule for the Southern District of New York 23.1. That means that you would have to stop doing some things you have been doing. If you participate here, you would not be able to declare your opinion as to Mr. Cohen’s guilt, which you did; you would not be able to give publicity to documents that are not public. It would change your conduct. That is my only whatsoever. possible role in doing what Mr. Cohen’s lawyers want, which is, to essentially stop in its tracks your publicity tour on TV and elsewhere. And I say ‘publicity tour’ not in a derogatory sense. You are entitled to publicity so long as — that is, I can’t stop you, unless you are participating in this matter before me.

So I either want you to participate or not be in the matter at all. I don’t want you to have some existence in a limbo, where you are free to denigrate Mr. Cohen and I believe potentially deprive him of a fair trial by tainting a jury pool.  I know a jury, if there is one, is way down the road, and memories certainly may fade, but this conduct is inimical to giving Mr. Cohen eventually a fair trial.

But that was not the judge’s only slight to Stormy’s lawyer. In discussing his interest in intervening in the case, Avenatti mentioned some taped conversations between Cohen and Daniel’s prior attorney which, according to Avenatti, included communications protected by attorney-client privilege.

Avenatti indicated his interest in allowing the special master to decide whether those tapes were privileged, but the court noted that the other parties had agreed to split the cost of the special master 50-50. Avenatti quickly committed to sharing the cost, but Judge Woods countered that based on Avenatti’s behavior in a previous arbitration case, “that left some question in my mind about whether you would in fact share something that you say you will share.”

Following the court’s lecture and this slight, Avenatti backed down, and agreed to put on hold his motion to appear pro hoc vice. Judge Woods then reminded Avenatti that meant he would not be allowed to participate in future proceedings. But there is always CNN.

Margot Cleveland is a senior contributor to The Federalist. Cleveland served nearly 25 years as a permanent law clerk to a federal appellate judge and is a former full-time faculty member and current adjunct instructor at the college of business at the University of Notre Dame.

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