This is the first of a new column from the hosts of the legal podcast Mic Dicta that will break down the strangest and most interesting court cases knocking around the US legal system.
It’s almost impossible to follow the Michael Cohen story these days. On one side, Donald Trump’s lawyer is under investigation by the US Attorney for the Southern District of New York; on another, his side gig as an influence peddler has been revealed; from yet another he’s being sued by Stormy Daniels and her suddenly famous lawyer Michael Avenatti, who wants to void an agreement that prohibits Daniels from talking about an alleged affair with Trump. And last week the convoluted, multi-front legal battle Cohen is waging took another turn, as the beleaguered fixer opposed Avenatti’s motion to appear pro hac vice in the litigation over the Cohen records seized by the government.
A motion by an out-of-state attorney to appear pro hac vice is usually the most perfunctory aspect of any litigation. It’s a fancy latinate phrase for “just this once” and it’s a request to appear as an attorney in a court where you aren’t admitted to practice. Your opponent will almost never oppose it because the court would almost never deny the motion anyway. I’ve never been around an interesting pro hac vice motion, but then again I’ve never litigated in Trumpworld.
To back up a little, among the claims made by Daniels is that her former lawyer Keith Davidson was actually working with Cohen to help cover Trump’s ass when he negotiated the $130,000 payment in exchange for Daniels not talking about her having sex with Trump, which the president says never occurred. Among the things that Avenatti believes is that Cohen has tapes of his conversations with Davidson, their communications, Davidson’s privileged communications with Daniels, and other records relevant to Daniels’s lawsuit to break her NDA with Trump—and that the government has seized those records. When Cohen’s attorneys filed a motion for a temporary restraining order to protect any privileged communications, Daniels moved to intervene in the case to protect her own interests, and Avenatti requested permission to serve as counsel. That’s when the fireworks started.
If you’re a lawyer in good standing wherever you do practice and you promise not to be an asshole, there’s really no good reason for a judge to deny a motion like Avenatti’s. Courts don’t want to second-guess a litigant’s choice of counsel. The process is so standardized, the SDNY website even provides a sample motion and proposed order with exactly what to say. Avenatti, needless to say, is admitted in California and in good standing. It’s the “not being an asshole” part that Cohen’s lawyers think he’s going to have a problem with. Cohen filed a histrionic letter and a more formal, but still histrionic, memorandum of law opposing Avenatti’s motion.
Among Cohen’s more specific claims of assholery are that (a) Avenatti failed to disclose that he is under investigation by the California bar; (b) that he made false public statements to prejudice potential jurors against Cohen; and (c) he illegally obtained non-public Suspicious Activity Reports about Cohen’s financial transactions and then broadcast them to the world.
Avenatti denies all of this. Specifically, he says (a) any schmuck can file a complaint against any attorney but he hasn’t been notified of any formal proceeding against him; (b) he may have made a couple of mistakes but most of what he said about Cohen has been proven true; and (c) he didn’t get the information from illicitly obtained SARs, Cohen has given no actual proof that he did, and even if that was the source of the information, Avenatti isn’t a bank so he is not legally required to keep the information confidential anyway. These are disputes of fact, though. It’s up to you who you trust. As a matter of law, if everything Cohen said was true, are these allegations enough to deny Avenatti’s motion for admission? Probably not.
I say probably not because none of the cases that Cohen cites in his memorandum—the letter cited no cases at all—were similar to what he accuses Avenatti of. Cohen cites the standard lines—“it’s a privilege not a right,” the court’s interest in avoiding a “carnival atmosphere,” and the court’s obligation “to assure itself that Avenatti will act professionally”—but as broad as that language is, the cases mostly deal with far more extreme behavior, and conduct after the attorney has already been granted pro hac vice admission. One attorney in a case cited by Cohen turned out to be a sovereign citizen-style tax protester who filed multiple frivolous motions with no actual basis in law. One was denied pro hac vice admission to participate *in a retrial* after the judge found out that he had failed to disclose that he’d pled guilty to criminal contempt of court in his home state in his affidavit before the first trial. One case involved attorneys that filed the simple pro hac vice application paperwork incorrectly—indirectly demonstrating that they weren’t familiar with the local rules—then submitting motions without having been properly admitted as counsel, all while filing the pro hac vice paperwork incorrectly a second time.
Infamous conservative legal pest Larry Klayman had his pro hac vice admission revoked for asking a judge to recuse himself more or less for being Chinese and also for general disrespect. John Gotti’s lawyer Bruce Cutler was charged with criminal contempt for repeatedly talking to the press, which sounds promising for Cohen, but Cutler was only charged after disobeying increasingly strenuous orders from the judge to stop trying the case in the media. One case doesn’t involve attorney admission or discipline at all, and only spoke generally about propriety.
Avenatti is appearing on TV a lot, but his papers seem in order, nothing that he’s gotten wrong was clearly intentional, and he hasn’t disobeyed any instructions from the court. The allegation that Avenatti is an asshole may not be entirely without cause. He’s been sued by former law and business partners, he’s started making legally dubious threats to sue outlets reporting on him now that he’s a public figure, and he closes his tweets with a catchphrase hashtag. That’s probably not enough for Cohen to win this fight, though.
It’s not illegal to be a jerk, and if every jerk was barred from practicing law, we’d start seeing a lot more people forced to represent themselves.
Charles Star is a Brooklyn-based lawyer and the host of Mic Dicta, America's best-named legal podcast. Follow him on Twitter.
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