WashU Expert: Porn Star Payment Raises Ethics Concerns

Article ID: 689855

Released: 20-Feb-2018 3:05 PM EST

Source Newsroom: Washington University in St. Louis

Expert Pitch

President Donald Trump’s private lawyer claims that he personally sent $130,000 to porn star Stephanie Clifford, who stated that she had an affair with Trump a decade ago, long prior to his election. The lawyer, Michael Cohen, claimed the payment was legal. But Peter Joy, a legal ethics expert at Washington University in St. Louis, questions where it fits under New York state ethics rules.

“Rule 1.8(e) of the New York Rules of Professional Conduct states, ‘While representing a client in connection with contemplated or pending litigation, a lawyer shall not advance or guarantee financial assistance to the client.’ So, if Ms. Clifford is contemplating some type of litigation against Mr. Trump, then his payment for Mr. Trump’s benefit would trigger a violation of this ethics rule,” said Joy, the Henry Hitchcock Professor of Law and director of the School of Law’s Criminal Justice Clinic.

But what if Clifford was not threatening litigation but simply that she was going to make the affair public?

“If the payment was to buy Ms. Clifford’s silence prior to the election, it could trigger a violation of Rule 1.8(a) if it was a loan and if Mr. Cohen did not have a written loan agreement with Mr. Trump,” Joy said. “If Mr. Cohen has a written loan agreement and followed other aspects of Rule 1.8(a), which include that the loan terms are fair and reasonable and that Mr. Trump was advised in writing about seeking out independent legal counsel on the matter, then Mr. Cohen would be in the clear on this front.”

Assuming Cohen did not violate any provision of Rule 1.8, he could still be in hot water if he lied about the payment, Joy said.

Mr. Cohen has said that, ‘I used my own personal funds to facilitate a payment of $130,000 to Ms. Stephanie Clifford. Neither the Trump Organization nor the Trump campaign was a party to the transaction with Ms. Clifford, and neither reimbursed me for the payment, either directly or indirectly.’

“Another New York Ethics Rule, Rule 8.4, prohibits a lawyer from “engag(ing) in conduct involving dishonesty, fraud, deceit or misrepresentation.” If any part of this explanation is a lie, for example someone else has repaid him on behalf of Mr. Trump, then that would be Mr. Cohen engaging in dishonesty, deceit or misrepresentation,” Joy said.

To read all of Joy’s thoughts on the topic, visit his blog.


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