When considering The People of New York v. Trump, 71543/2023, New York State Supreme Court (New York County), most people focus on salacious details such as the former president's affair with an adult film actress while the two were at a celebrity golf event in Lake Tahoe, followed by the actress's attempts to sell the story, and, ultimately, efforts made by the former president's fixer, Michael Cohen, to pay the actress $130,000 in exchange for a non-disclosure agreement (NDA). However, lawyers familiar with the Rules of Professional Conduct are focusing on a more subtle, though no less important, issue: the asserted conflict of interest by Stormy Daniels (aka Stephanie Clifford) involving the former president's attorney, Joe Tacopina.

Clifford's attorney argued that Tacopina must withdraw as the former president's attorney in this criminal case because Clifford previously consulted with Tacopina and his firm concerning the payment in exchange for an NDA. According to Clifford's attorney, by representing the former president in the current criminal trial, Tacopina would violate RPC 1.18, which governs a lawyer's obligations to former prospective clients, in this case, Clifford. In a letter to the court, Tacopina countered that he has not violated RPC 1.18 both because Clifford was not a prospective client and the disclosure of any information shared by her would not significantly harm her. The dispute about what Clifford told Tacopina reminds attorneys of their obligations to prospective clients and the need to comply with RPC 1.18.

RPC 1.18

Under RPC 1.18, an attorney may be disqualified from representing a current client adverse to a former prospective client. A "former prospective client" is a person who discusses with an attorney the possibility of forming an attorney-client relationship. Examples of former prospective clients abound: a person calls an attorney because they are thinking about getting divorced, pursuing an injury claim, purchasing property, addressing a business dispute, creating an estate plan, and so forth. During the initial inquiry, the potential client often reveals confidential information. Despite the preliminary consultation, no formal attorney-client relationship follows. Occasionally, at some later point another party involved in the same or substantially related matter may also consult, or even retain, that attorney. RPC 1.18 addresses the attorney's obligations to the former prospective client under that scenario.