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Wednesday, June 06, 2018

Clifford v. Davidson & Cohen

Stephanie Clifford (a/k/a Stormy Daniels) has filed a breach of fiduciary duty action against her former attorney, Keith Davidson. Michael Cohen and Does 1-10 are also defendants. The complaint is available here, with text messages between Davidson and Cohen attached as an appendix. Actions similar to those alleged here have led to disbarment in other other cases--if these allegations can be substantiated, I wouldn't be surprised to see a subsequent disciplinary action. According to Davidson's spokesperson, however, "Attorney Davidson is very happy that he has filed this lawsuit because he strongly believes that the filing constitutes a full and complete waiver of the attorney-client privilege." Even if the complaint waived privilege to some degree, however, Davidson might want to hold on there. It's not entirely clear that waiving privilege would also waive the attorney's duty of confidentiality--certainly, under the Model Rules, it would not. California law is less clear, but even there authorities have held that attorneys' revelation of confidential information "must be narrowly tailored to respond only to the specific issues raised by the client." 

Posted by Cassandra Burke Robertson on June 6, 2018 at 05:30 PM | Permalink

Comments

I am not so sure that the Model Rules do not provide for a waiver of confidentiality in this situation. According to MR 1.6(b),

"A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

"(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer's representation of the client."

How does that not apply to the Daniels lawsuit against Davidson? Of course, any revelation must be narrowly tailored and reasonable, but it certainly seems that she has opened the door to much of the communication between the two of them.

Posted by: Steven Lubet | Jun 7, 2018 2:25:59 PM

Yes, that "narrowly tailored and reasonable" requirement is everything here, I think. The duty of confidentiality does not get waived in the same way that we think of a waiver of privilege--it doesn't open the door to let Davidson disclose any and all information, though his spokesperson suggests that he wants to. (And I think it's reasonable to interpret that statement as a threat against the client--that once she has made a complaint, she is vulnerable to having all of her confidential information disclosed). But the MRPC 1.6 exception to the duty of confidentiality is defensive only--it allows the lawyer to "respond to the extent the lawyer reasonably believes necessary to establish a defense." It does not allow the lawyer o go on the offense to attack a former client.

Posted by: CBR | Jun 7, 2018 2:47:21 PM

By it's language, MR 1.6 allows the lawyer "to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client," so it is not "defensive only."

There is no doubt some information that is not reasonably relevant to a "claim or defense" for Davidson, but I think the door has been opened pretty widely by this lawsuit. This will surely be litigated, so it will be interesting to see the outcome.

Posted by: Steven Lubet | Jun 7, 2018 4:12:05 PM

Sure, MRPC 1.6 allows an attorney to disclose confidential information in order to bring an affirmative claim against a client (e.g., a claim for an unpaid fee, or a claim for defamation). But we know that's not what Davidson's spokesperson is talking about here, because 1.6 allows such a claim to be brought regardless of whether the client has spoken publicly or not. What Davidson is talking about is responding to Stormy Daniels' disclosure of information. In this situation, the attorney's ability to respond IS only defensive--that's why the comment specifies that such disclosure can be no broader than necessary to establish a defense. How widely Daniels has "opened the door" is not the question--the question is what would be reasonably necessary for Davidson to say in his own defense. If he reveals more than that, he would be subject to discipline--and rightfully so.

Posted by: CBR | Jun 7, 2018 4:42:48 PM

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