Saturday, March 18, 2023

Does Trump's lawyer have a conflict of interest?

 The other day I saw a story with the title: "Trump lawyer's ethics issue: He initially was approached by Daniels."  In it, the author recalls the fact that the lawyer currently representing Trump in the case related to the hush money payment made to Stormy Daniels had been consulted by Ms. Daniels before he agreed to represent Trump.  The article suggests that this means that Trump's lawyer (Joe Tacopina) has a conflict of interest.  However, I don't think we have enough information to reach that conclusion...  yet.

What we know is that Stormy Daniels approached Tacopina about representing her but he declined.  It appears that that "approach" included at least one conversation between Daniels and the lawyer, but that does not necessarily mean that "an attorney-client relationship was established at the point of that consultation" as the article states.

When a person approaches an attorney to discuss whether the attorney will take on their representation what is formed is a relationship between the attorney and a prospective client, and the duties owed to a prospective client are different than those owed to a client.  

Whether the prospective client actually establishes an attorney-client representation depends on what transpires during the conversation(s) leading to the decision by the lawyer not to take on the representation.  And that is the information we don't have in this case.

Having said that, assuming there was no attorney-client relationship formed, is there "an ethics issue" as the article says?  Assuming the rules that apply are the ones from New York, a lawyer shall not represent a client with interests materially adverse to those of a prospective client in the same or a substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to that person in the matter although a different lawyer from the same firm could if certain conditions are met. 

Now, let's keep assuming things we don't know.  Assuming that there was a consultation during which Stormy Daniels disclosed confidential information that could be used against her in some way in the future, what would be the consequences?

Assuming all that as true, it could be argued that the lawyer violated a duty toward Stormy Daniels and could be subject to discipline for it.  

But could it lead to having the lawyer disqualified from representing Trump in the criminal case?  Well, the interesting thing about that is that the person who could object to the lawyer's representation of Trump would be the prospective client, ie, Stormy Daniels, and she is not a party in the criminal case.  She might be a witness, but according to some news reports I have seen, she did not testify before the grand jury.  

This means that the State would have to argue that she will be a witness and that Trump's lawyer should be disqualified from representing him because the  lawyer would be in a position to disclose or use confidential information obtained from her during her original consultation that could be significantly harmful to her.  Not just harmful. Significantly harmful.  

I don't know what the rules is about who has standing to file a motion to disqualify in New York so I don't know if the State can even bring the argument.  

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