Judge Wood Tells Avenatti He Would Have to Stop 'Publicity Tour'
Shortly after the hearing, which saw a June 15 deadline for Cohen's team to finish its privilege review process, Avenatti pulled his pro hac motion before the court.
May 30, 2018 at 01:40 PM
7 minute read
The hearing before U.S. District Judge Kimba Wood of the Southern District of New York was originally scheduled as a check-in on the privilege review process being handled by attorneys for Michael Cohen.
But it was Michael Avenatti, attorney for adult film actress Stephanie Clifford aka Stormy Daniels, who ended up taking up most of the time. More specifically, it was Avenatti's pro hac vice motion to appear in the Southern District, which has been actively and, during the hearing, vocally opposed by Cohen's attorney, McDermott Will & Emery attorney Stephen Ryan.
Avenatti himself appeared to ask the court to address an alleged leak that he said most probably came from Cohen's team. According to Avenatti, a reporter recently asked him to comment on tapes purportedly between Cohen and Clifford's previous counsel, Keith Davidson, in which Davidson is unwittingly being recorded discussing privileged information about his client with Cohen. Avenatti has said he believes the leak is meant to “paint a false narrative” of his client.
The possibility of tapes in Cohen's position, and their alleged leaking, were part of the reason Clifford was seeking intervenor status in the case, according to Avenatti.
“Sooner rather than later that is going to have to be teed-up,” he told Wood.
Had his team released the audio, Ryan told the court, it would have caused a major media sensation of its own. Any such material, if it exists, is “under lock and key” at his offices, he said.
“I am unaware of any release of an audio file at this time,” Ryan told the court.
For Ryan, Avenatti's claims were an attempt to equate allegations against Cohen's team with his own inappropriate disclosures.
Before Wood on Wednesday, Ryan reiterated his argument that Avenatti's recent action represented breaches of professionalism egregious enough the court should keep Avenatti from being allowed to represent Clifford in the Southern District. Clifford's request to intervene is being held in abeyance at the request of the government and with Avenatti's consent.
“I have never seen an attorney conduct himself in the way Mr. Avenatti has,” Ryan told the court.
Ryan's first point of concern remains Avenatti's role in the release of information about a bank account used by Cohen to allegedly pay Clifford $130,000 in hush-money ahead of the 2016 presidential election. The release showed Cohen also using the account to receive millions of dollars from companies such as AT&T and Novartis, which have publicly acknowledging paying Cohen for supposed consultation services. The fallout over the payments eventually led to revelations Trump reimbursed Cohen for the payment to Daniels, something the president previously denied knowing about.
“It was a premeditated drive-by shooting of my client's rights,” Ryan said.
Ryan has also raised Avenatti's own legal issues, most recently a $10 million judgment against one of his firms, Eagan Avenatti, by a federal bankruptcy judge in California.
“Candidly, he shouldn't be asking us to answer questions; he should be asked to answer questions,” Ryan said.
Later in the proceeding, Spears & Imes partner Joanna Hendon, who leads President Donald Trump's legal team intervening in the matter, announced for the first time that the president “endorses in every way” the concerns raised by Cohen's counsel. After Avenatti rose to reply to the endorsement, calling it ironic considering Hendon's own client's issues with bankruptcy and troublesome public statements, Hendon produced a series of emails to the court and other parties.
The emails, according to Hendon, undercut a simple claim by Avenatti: that the law firm connected to the California bankruptcy did not represent Clifford in the matter before Wood. Hendon noted Avenatti had volunteered this information to the court in filings. Yet the emails she said she was providing to the court appeared to show attorneys with the firm at issue, Eagan Avenatti, communicating with the president's counsel and others regarding Clifford.
“When someone, especially a lawyer, is prepared to be not straightforward, and cute, and I would say misleading” with the court, Hendon said, it raised questions about how he would “conduct himself on the more serious proceedings” going forward.
Throughout the hearing, Avenatti attempted to defend himself before the court, arguing, as he did about the California bankruptcy, that the issues being presented were disconnected with anything at issue in the current proceeding, which was one about documents. These seemed to have little effect on Wood, who took aim at Avenatti's behavior.
“You will not be permitted to use this court as a platform,” Wood told Avenatti at one point.
As the judge noted, he lacked standing as long as his client's motion to intervene remained in abeyance. Should his application be accepted, Wood said it would require him to “change [his] conduct.” Wood made clear her concerns were forward-looking: before her was the initial phase of a potential criminal charge against Cohen, which could lead eventually to a trial.
If he were allowed to represent his client before the court, Avenatti would have to stop his “publicity tour”—Wood said the term was not meant “in degradation,” but as something he was able to do now, but which he wouldn't should he get to participate in the matter before her. Nor would he be able to publicly “degenerate Mr. Cohen.”
The possibility his actions could taint future jurors represented a threat to Cohen receiving a fair trial, she said.
Shortly after the hearing, Avenatti told the court he was pulling his pro hac motion. He said it would be refiled “if necessary” when his client's intervention motion is set for a hearing.
While Avenatti commanded most of the court's attention, the government and Cohen's attorneys did update the court on their progress. McDermott Will & Emery partner Todd Harrison told the court that Cohen's team had so far received 3.7 million files from the government. Of those, Harrison told the court they'd gone through 1.3 million. The material came from 13 mobile devices, 19 digital media devices like hard drives and thumb drives, as well as hard copies seized from Cohen's offices and homes in April.
The government said it was still in the process of getting access to two BlackBerry devices it seized, which Harrison told the court his client believed belonged to his wife and were potentially eight years old. The government also said it had a shredder in its possession, but any documents produced from it would be a small amount.
Wood set June 15 as the deadline for Cohen's team to finish its review of the material, over Cohen's legal team's objections. They argued they needed more time, and were working as fast as possible. Wood noted that special master Barbara Jones, a partner at Bracewell and former district judge in Manhattan, was reviewing the same material at a much faster clip. Any outstanding material Cohen's team could not review for privilege by the deadline would then be turned over to prosecutors to finish.
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