jberryhill
jberryhill's JournalCohen warrant case hearing tomorrow and Avenatti agenda
It's been a while since I posted a docket update in the matter of the search warrants executed at Michael Cohen's office and residences, so some of this is old news. But as long as Mr. Avenatti is now threatening to sue the US attorneys on the case, it is worth mentioning the various filings this case has attracted since my last review of the docket here: https://upload.democraticunderground.com/100210630928
If you saw It's a Mad, Mad, Mad, Mad, Mad World, there is a scene where people are arriving at the park in Santa Rosita looking for the "Big W", but they notice there are all sorts of other people who have come out of the woodwork to look for it too. That's been the background level of "odd things that have floated onto the docket" in this case.
This one by Gregory and Janis Kaighn is an instant classic gem of the "pro se filer" category which courts adore and love. In this letter to the court, the Kaighns request that the court issue them an arrest warrant by which they can take Mr. Cohen and presumably Trump, into custody on their own:
https://www.courtlistener.com/recap/gov.uscourts.nysd.491943/gov.uscourts.nysd.491943.64.0.pdf
The Kaighns are asking the court to issue arrest warrants because, well, they've been busy in various courts:
https://www.leagle.com/decision/infdco20170815f74
The Kaighns filed the complaint on September 19, 2016. Compl. The complaint alleges (1) "the Illuminati" are a Communist organization within the meaning of the Communist Control Act of 1954 ("the Act" )
, 50 U.S.C. § 841, id. ¶ 12; and (2) Trump is a member of "the Illuminati" and hence a Communist under the Act, id. ¶ 16. The Kaighns seek a declaration that Trump is a member of the Communist Party and therefore forfeits all "rights, privileges, and immunities." Id. ¶¶ 21-22. The Kaighns further seek preliminary and permanent injunctions barring Trump from becoming President of the United States. Id. ¶ 20.
https://casetext.com/case/kaighn-v-united-states-1
Plaintiffs filed the complaint on September 6, 2016, alleging that the duly-elected government of the United States has been overthrown by the "Roosevelt Dictatorship" with the assistance of the British Monarchy, the Rothschild Central Bankers, and the Illuminati. See generally Compl. Plaintiffs asserted "[t]he entire United States government has gone completely dark" and, accordingly, sought rescission of the United States Constitution, a Constitutional Convention, a declaration that a list of federal statutes are unconstitutional, the imposition of a constructive trust over the United States, and the appointment of a receiver "to take custody, manage, and protect the assets of the United States, the federal government and the Federal Reserve for the benefit of the American people." Id. ¶¶ 83, 105-108.
Interestingly enough, Mr. Kaighn is an attorney, duly admitted in California:
https://www.pacermonitor.com/public/case/19081303/Kaighn_et_al_v_United_States_of_America
ORDER signed by District Judge Kimberly J. Mueller on 4/11/2017 DECLARING Gregory Kaighn a vexatious litigant. ORDERING Gregory Kaighn shall not initiate any further action as a self-represented plaintiff in this court unless the pleadings initiating the action, which must be submitted in hard copy, are accompanied by a declaration under penalty of perjury that explains why Mr. Kaighn believes he has meritorious claims. A copy of this order shall be attached to any application. The Clerk shall not accept any action submitted by Mr. Kaighn as a self-represented plaintiff unless it is accompanied by the required declaration and copy of the instant order; any incomplete filings shall be returned to Mr. Kaighn without further action of the court. If Mr. Kaighn submits an action as a self-represented plaintiff accompanied by the required declaration, the Clerk shall open the matter as a miscellaneous case to be considered by the General Duty Judge of this court. The court SUSPENDS Mr. Kaighn from practice before this court for a minimum of sixty days, with the requirement that thereafter he submit a prereinstatement declaration, which must be accepted by the court before reinstatement, explaining his understanding of the reasons for his suspension and the steps he will follow to cure those reasons. The court INSTRUCTS the Clerk of the Court provide a copy of this Order to the state Judicial Council. The court INSTRUCTS the Clerk of the Court to refer this matter to the appropriate disciplinary body of the California State Bar.
The Kaighns are one of several parties which has attempted to somehow insinuate themselves into this proceeding, which is primarily about which documents seized in the raids will be provided to the investigators of the USAO-SDNY.
In my previous summary, I had mentioned the curious figure of Mr. Peter Gleason, a NY attorney, who had filed some weird stuff about two women beaten up by Schneiderman under circumstances where it was preferable that they not go to the police. Mr. Gleason was defending a prostitution operation at the time, and various folks have been able to do the math on that one.
Mr. Gleason's intervention was denied, as he did not explain how any privilege would attach to correspondence between him and Cohen on that matter.
ORDER as to In the Matter of Search Warrants Executed on April 9, 2018. Mr. Gleason has moved for a protective order over purportedly privileged information that Mr. Gleason states he has disclosed to Mr. Cohen "in furtherance of [Mr. Gleason J's role as an attorney investigating a potential claim and or representing clients." (ECF No. 51, at 5-6.) Mr. Gleason appears to be arguing that the "common interest" exception to waiver of the attorney-client privilege should apply to those disclosures. However, Mr. Gleason's submission does not allege facts that meet the test for a finding of "common interest," which requires that the parties and their respective counsel have decided upon and undertaken a "joint defense effort or strategy." See Schaeffler v. United States, 806 F.3d 34, 40 (2d Cir. 2015). Accordingly, Mr. Gleason's motion is DENIED. SO ORDERED. (Signed by Judge Kimba M. Wood on 5/24/2018)(ft) (Entered: 05/24/2018)
It was an interesting ruling to which the media and blogger paid no mind, which is sort of surprising, since Gleason's reason for wanting to be in on the document production is very much like that of Avenatti's.
In my last update (linked above) I noted that, as long as the special master was continuing to review the materials, the parties had little to fight over other than "why is Michael Avenatti here?"
Avenatti has no actual role in the case. He had originally filed for intervenor status for Daniels on the proposition that Cohen may, or may not, possess correspondence relevant to the California litigation in which Daniels is seeking to have the hush contract rescinded.
At the request of the US Attorneys, and Mr. Avenatti's consent, he consented to have his motion to intervene "held in abeyance" - i.e. not acted on by the court. Given that consent, it has been something of a curious spectacle that he and Cohen's attorneys have engaged in over his motion for pro hac vice admission. Since he has no active motion, there is not any point in admitting him to the proceeding.
Just to be clear, the US Attorneys filed a separate letter when asked about Avenatti's pro hac admission:
https://www.courtlistener.com/recap/gov.uscourts.nysd.491943/gov.uscourts.nysd.491943.56.0.pdf
Government respectfully submits this letter in response to the Court’s order, dated May 21, 2018. The Government has conferred again with counsel for proposed Intervenor Stephanie Clifford and, at this time, with the consent of counsel for Ms. Clifford, the Government requests that her motion to intervene continue to be held in abeyance. After further conferring with counsel for Ms. Clifford, the Government will provide an update to the Court on or before June 1, 2018, advising whether there is a need for the Court to consider the motion.
The Government takes no position on Mr. Avenatti’s motion to appear pro hac vice.
The last sentence is somewhat gratuitous since the US attorneys do not want Avenatti to be granted intervenor status, so whether he's admitted on the only motion he's filed is somewhat academic.
But, not actually being admitted to the court or having an actual iron in the fire is not enough to hold him back, as this curious letter received not a whole lot of attention when Avenatti filed it:
https://www.courtlistener.com/recap/gov.uscourts.nysd.491943/gov.uscourts.nysd.491943.58.0.pdf
We write to bring an important matter to the Court’s attention.
We have reason to believe that plaintiff Michael Cohen, or members of his team, have begun to leak select audio recordings to the media that were seized in the FBI raids. We further have reason to believe that these recordings may relate to our client, Ms. Stephanie Clifford. We think that these select leaks are meant to paint a false narrative relating to Mr. Cohen and his business dealings at the same time he is not disclosing numerous other recordings of him speaking with individuals such as Mr. Trump.
We respectfully request that the Court make inquiry of Mr. Cohen’s attorneys of these leaks at Thursday’s hearing, including, among other things, whether Mr. Cohen’s team is the source of the leaks, what was disclosed, and the reasons for the disclosures. Such leaks would plainly call into question the seriousness of Mr. Cohen’s arguments opposing my pro hac vice motion. They may also directly interfere with the privilege review being conducted by the Special Master. Further, if the materials publicly disclosed relate to our client, the disclosures would also have relevance to our motion to intervene.
So, try to figure that one out. Avenatti claims Cohen is leaking materials that were "seized in the FBI raids" - i.e. materials that belonged to Cohen in the first place since anything "seized in the FBI raids" was his stuff. But the spectacle of an attorney with no actual role in the proceeding asking the judge to interrogate a soon-to-be criminal defendant on the basis of "we heard a rumor" is pretty outstanding. At the end of the day, if Cohen wants to disclose his own documents and recordings to the media in order to "paint a false narrative" or, for that matter paint a picture of poker-playing dogs, that's pretty much Cohen's prerogative. But Avenatti's letter suggests that Cohen has some kind of duty to keep things about Daniels secret - as if there were some sort of contract to that effect, I suppose.
So, Judge Wood had asked the parties for an update on whatever it is they want to discuss during the upcoming hearing, and the USAO-SDNY prepared the joint submission for everyone:
https://www.courtlistener.com/recap/gov.uscourts.nysd.491943/gov.uscourts.nysd.491943.62.0.pdf
As directed by Order dated May 22, 2018, the Government respectfully submits this letter—jointly with counsel for Michael Cohen, the Intervenors, and Stephanie Clifford—setting forth a proposed agenda for the conference on May 30, 2018. The parties request that the Court address the following at the conference:
An update on the Government’s production of the material seized pursuant to search
warrant on April 9, 2018 to Cohen and the Special Master (the “Material”).
An update on Cohen’s production of portions of the Material to the Intervenors.
An update on the release of non-privileged portions of the Material to the Government by the Special Master.
Clifford’s counsel asks that the Court address his pending pro hac vicemotion; Cohen asks that this motion be held in abeyance to the extent that Clifford’s motion to intervene is also in abeyance.
Clifford’s counsel asks that the Court address his letter to the Court dated May 22, 2018 relating to alleged leaks of audio recordings by Mr.Cohen or members of his team.
And of course, on the eve of the hearing, this came in today from the Cohen camp concerning Avenatti's candor and fitness for the discretionary power that the court exercises over pro hac vice admission:
https://www.courtlistener.com/recap/gov.uscourts.nysd.491943/gov.uscourts.nysd.491943.66.0.pdf
Dear Judge Wood:
We represent plaintiff Michael D. Cohen (“Mr. Cohen”) in the above-referenced matter. We write regarding Mr. Avenatti’s letter and motion for admission pro hac vice. We submittedto the Court a letter on May 9 (ECF 41) and a memorandum of law on May 18 (EC 53) opposing Mr. Avenatti’s application for pro hac vice admission in this case. We have previously provided the Court with various reasons why pro hac vice admission is inappropriate for Mr. Avenatti given the circumstances of his conduct in this matter.
We write to bring to the Court’s attention a recent decision by the U.S. Bankruptcy Court for the Central District of California regarding conduct by Mr. Avenatti and his law firm, Eagan Avenatti LLP, which led the Bankruptcy Court to impose a $10 Million judgment against Mr. Avenatti’s law firm last week. See In re Eagan Avenatti, LLP, No. 8:17-bk-11961-CB (C.D. Cal. May 22, 2018), ECF 445. This judgment occurred after Mr. Cohen’s pro hac vice response was filed with the Court. We attach the following: Exhibit A - the Bankruptcy Court’s Order;Exhibit B - the Complaint from that proceeding; and Exhibit C - a May 25, 2018 New York Law Journal article regarding the conduct of Mr. Avenatti’s law firm in relation to that proceeding.
The Bankruptcy Court reviewed a record that included an arbitration panel order that found Mr. Avenatti’s firm “acted with malice, oppression and fraud . . . .” See Exhibit B, Jason Frank Law, PLC v. Michael J. Avenatti, No. BC 706555, at Ex. 2 (Cal. Sup. Ct. May 16, 2018) (attaching as Exhibit 2, Jason Frank Law, PLC v. Eagan Avenatti, LLP, JAMS Ref. No. 1220053114 (2017) (Friedman, Arb.)). The Honorable Karen S. Jennemann, a Federal Bankruptcy Judge in the Middle District of Florida, also stated on the record that a filing in the case had “a stench of impropriety . . . .” Id. at Ex. 4 (Transcript of Proceedings held on March 8, 2017, In re Eagan Avenatti, LLP, No. 6:17-bk-01329-KSJ (March 8, 2017), ECF 157-1, at 22:12-13; 23: 9-17.).
We believe the attached court documents amplify our opposition to Mr. Avenatti’s motion to be admitted pro hac vice. We have also attached a tweet published by Mr. Avenatti on May 18, shortly after we filed Mr. Cohen’s brief with the Court, regarding one of the undersigned lawyers and the law firm representing Mr. Cohen. Exhibit D, Michael Avenatti, Twitter (May 18, 2018, 5:38 PM).
We did not respond to the numerous media requests that resulted.
The nice thing about court filings is that while the New York Law Journal puts most of its content behind a paywall, the article in question can now be read here:
https://www.courtlistener.com/recap/gov.uscourts.nysd.491943/gov.uscourts.nysd.491943.66.3.pdf
Memorial Day at Delaware Veteran's Cemetery
Giro d'Italia
If you can get your hands on a recording of Stage 19 of this year's Giro, you want to start at around 75kms from the end.
Utterly epic stage. One for the ages.
And this....
And a good recap of the whole shooting match:
Thou shalt not covet thy neighbor's valve gasket
You know those YouTube channels about "my weird neighbor"? I'm thinking of starting something like that, except from the weird neighbor's point of view. Although, I think he thinks I'm weirder than I think he is.
Anyway, it's always a good time to check how the beer supply is going when he's under the hood of his car, and yesterday was valve gasket time!
https://twitter.com/Berryhillj/status/1000410623065444353
Full video: Stormy Daniels Receives Key To West Hollywood
WEST HOLLYWOOD, Calif. (KABC) --
West Hollywood officials presented Stormy Daniels with the key to the city, saying they were honoring her for her legal battle against President Donald Trump.
The city proclaimed "Stormy Daniels Day" as the porn star made an appearance at adult-products store Chi Chi La Rue's.
This includes the full speeches by Avenatti and Daniels, along with the poster advertising her 7 and 9 PM appearances, and TeamStormy apparel.
Meanwhile, in Italy...
SDNY Cohen Case Filing Friday Roundup
An interesting little catfight broke out this week in the Cohen search warrant proceeding, and while I'm reluctant to guess what might yet be in store this early on a #FelonyFriday, there are some bits and pieces that I didn't see covered in the news in any great detail.
First up, some background on what this proceeding is about might be helpful. Michael Cohen is not, as yet, charged with a crime in New York. The basic outline is that he had been under investigation for several months on suspicion of a crime or crimes not yet identified, and that there was probable cause to search the locations which were searched to find evidence of it. The process of connecting that evidence with the crime(s) in mind is taking some time, in order to sort through the material seized and filter out any that might be privileged. Contrary to popular belief, what the USAO-SDNY has made clear is that the investigation pre-dates the Stormy Daniels civil matter in California.
What we learned today was that the search immediately followed a visit to NY by Qataris generously seeking to help out Jared with his rent. The search warrant immediately followed, probably as fast as it could, given the hoops through which one has to jump to get such a sweeping warrant for three locations involving an attorney. It's clear the USAO-SDNY wanted to get whatever may have been left behind while the Qatari trail was still warm.
After this matter concerning the search warrants began, Mr. Avenatti filed for intervenor status of Ms. Daniels. Procedurally, there are two parts of that - (1) Avenatti seeks admission to the court, since he is not licensed in NY, and (2) the intervenor petition itself.
On the matter of the actual intervenor status, Mr. Avenatti has agreed with the USAO-SDNY's motion NOT to allow that for the time being. That filing is here:
https://www.courtlistener.com/recap/gov.uscourts.nysd.491943/gov.uscourts.nysd.491943.35.0.pdf
The Government respectfully submits this letter to advise the Court that the Government
and counsel for proposed Intervenor Stephanie Clifford have met and conferred regarding her
Motion to Intervene (the “Motion”), as the Court directed. At this time, with the consent of
counsel for Ms. Clifford, the Government requests that the Motion be held in abeyance pending
these ongoing discussions.
What that says is that the prosecutors told Avenatti they don't want him in the proceeding, and he agreed pending further developments. Thus Avenatti has said he is "cooperating with the the USAO-SDNY", by agreeing to let the petition for intervenor status chill.
Into these waters waded the odd character of Peter Gleason. Gleason sent a letter to the court to the effect of his having held discussions with Cohen some years back on the matter of two women who were beaten up by Schneiderman, his advice that they not go to law enforcement, and his seemingly unconnected conversations that looped back to Cohen. While that sequence is something of a head scratcher, the picture becomes much clearer when one understands that Gleason had, in the relevant time frame, put up his own residence to secure the bond of a then-celebrated New York madam, and that Trump was in the "modeling agency" business. Hence, "you can't go to police" and what appears to be making other arrangements for compensation seem to line up with those facts a little more clearly.
In any event, Gleason wanted to ensure that the identities of the two women in question, and any records Cohen had about them, would also remain confidential. The judge requested that Cohen file a brief, advancing some legal reasoning as to why that is appropriate.
Gleason has filed his brief, which is a real thing of wonder. That brief is here:
https://www.courtlistener.com/recap/gov.uscourts.nysd.491943/gov.uscourts.nysd.491943.51.0_2.pdf
In summary, the brief says "Attorney work product is confidential, and New York is really, really corrupt." Why this means his dealings with Cohen in the matter of these two women should be protected is anyone's guess. There's one good point in there relating to protecting the identities of victims of sexual abuse, but not tied to what he's seeking here in any meaningful way.
The brief continues with several examples of drive-by accusations to the effect of, "Oh, did I mention that New York is really, really corrupt?"
Along the way, Gleason takes a potshot at Avenatti to the effect of saying that letting Avenatti into the case would pretty much blow any confidentiality relating to the potential documents in question, should there actually be any in existence, given the way that Avenatti has acted in relation to what appear to be unlawfully obtained bank documents.
Avenatti, still not actually admitted to the proceeding, doesn't let that get in the way of firing a gratuitous salvo at Gleason for reasons which are unclear. Although, really, it's unclear why he is seeking intervenor status on behalf of Daniels in the first place, since, in the contract suit in California, nobody disputes that the $130k was paid to Daniels and for the purpose of that contract dispute it doesn't matter one way or the other where Cohen got the money.
Be that as it may, Avenatti has an interesting footnote in his rimshot back at Gleason and as has become routine in his filings, spends quite a bit of time talking about himself, instead of any issue relevant to the case:
https://www.courtlistener.com/recap/gov.uscourts.nysd.491943/gov.uscourts.nysd.491943.52.0.pdf
"As a preliminary matter, even though counsel for Ms. Clifford, Mr. Michael Avenatti, is
addressed by name in the Motion and Mr. Gleason contends that Mr. Avenatti’s conduct
“necessitated the instant motion[,]” the stated request for relief in the Motion does not have
anything to do with Ms. Clifford or Mr. Avenatti. Rather, Mr. Gleason seeks a protective order to
ensure that his “discussions, regarding Eric Schneiderman, with (Plaintiff Michael Cohen), . . .
which Plaintiff may have memorialized, should be privileged communications and not subject to
disclosure to any third party.” [Dkt No. 51 at 10.] To be clear, Mr. Avenatti is not in possession
of these communications. Further, neither Mr. Avenatti nor his client have requested that these
communications be shared with them. Nor do they want access to them. Nor are they aware of
any plans on the part of the government to share these communications with them."
He italizices that last part, just to be "clear".
A sentence later, Avenatti continues with:
"Moreover, Mr. Gleason’s gratuitous ad hominem attacks on Mr. Avenatti are completely unwarranted."
...at which point we are referred to this footnote:
Mr. Avenatti is at a loss as to why Mr. Gleason would have filed pleadings with the Court
attacking him. Mr. Avenatti has absolutely no prior experience with Mr. Gleason. Indeed, Mr.
Avenatti first called Mr. Gleason days ago to discuss his prior letter to the Court and was
promised a call back by Mr. Gleason. He has yet to receive any such return call.
So, as Mr. Avenatti would say, "to be clear" he never wanted any access, information, sharing, etc., in relation to anything having to do with the two women that Gleason says Schneiderman beat up; but when Gleason filed his original letter, Avenatti wanted to talk to him about something. Gosh, one wonders why someone with such a profound lack of interest in the women discussed in the Gleason letter would have wanted to talk to Gleason about.
Oh, hey, by the way, somewhere in here I should probably mention that the USAO-SDNY is interested in pursuing a criminal investigation and likely some charges against Cohen. That's why this proceeding exists.
But, oh well, back to the pressing matters at hand.
Avenatti's brief concludes by hanging out to dry the poor schmuck who gave him the SARS. In defending himself, for no reason since he's not on trial, against the claim that he has done something untoward by leaking the SARS information, and the minor erroneous information about other people's bank transactions (but, well, who are they anyway, fuck 'em), Avenatti makes this brilliant point:
As shown in Ms. Clifford’s recent filing, the facts detailed in the report drafted and
released by Mr. Avenatti were largely proven accurate.
...because attorneys have an obligation to be (largely) accurate.
Moreover, Mr. Cohen in his letter
objecting to Mr. Avenatti being admitted pro hac vice failed to specify what laws Mr. Avenatti
supposedly violated, or what wrongs he committed. Mr. Gleason similarly failed to cite any legal
authority to support his position. This is not surprising, seeing that no Bank Secrecy Act law was
violated by his disclosures. See, e.g., In re JPMorgan Chase Bank, N.A., 799 F.3d 36, 41-42 (1st
Cir. 2015) (explaining that Bank Secrecy Act “expressly forbids disclosure only by reporting
financial institutions and their officers and agents, and by government entities, officials, and
agents on the receiving end of SARs” and concluding that “neither the Act nor the regulations
restrict third parties—that is, parties on neither the financial-institution side nor the government
side of a SAR exchange—from disclosing the existence or non-existence of a particular SAR.”)
First, understand that by "his disclosures", Avenatti means "my disclosures", as the upcoming royal wedding has no doubt led him to refer to himself in the third person.
But I love the takeaway from his argument: "I didn't break any law. The schmuck who got them for me did!" The Ecuadorian embassy was unavailable for comment on whether they have any open rooms in New York.
To finish off the week, Cohen's lawyers filed their brief opposing Avenatti's admission to the case, as the judge had previously requested.
Again, as things still stand, the USAO-SDNY hasn't modified their position that they don't want Avenatti in the case either but, whatever, they are pretty much in the back seat and along for the ride until the special master is finished sorting the evidence seized from Cohen.
Oh, did I mention that this case is about the USAO-SDNY looking to bring criminal charges against Cohen? Just in case you forgot. It's one of those irrelevant details that's easy to forget in all the exciting rock 'em sock 'em action.
So, in comes Cohen to take his turn with potshots against Avenatti. His brief is here:
https://www.courtlistener.com/recap/gov.uscourts.nysd.491943/gov.uscourts.nysd.491943.53.0.pdf
When you apply for PHV admission in a jurisdiction to which you are not directly admitted, you agree to play by the rules of that jurisdiction. Amazingly, New York actually has the same rule that California does on the subject of extrajudicial statements about a case:
Rule 3.6 of the New York Rules of Professional Conduct, provides the following:
A lawyer who is participating in or has participated in a criminal or civil matter
shall not make an extrajudicial statement that the lawyer knows or reasonably
should know will be disseminated by means of public communication and will
have a substantial likelihood of materially prejudicing an adjudicative proceeding
in the matter.
This will likely shock you to know that while the Empire State has no attorney regulation specifically addressing, "Going ape shit over people speaking Spanish in a sandwich shop", they actually DO have a rule against "Shooting your mouth off on television about a case you are involved in." I know, right?
The brief goes on to make the outrageous claim that Mr. Avenatti has made numerous media appearances about the case, and that since he's not following the rules already, the court shouldn't let him in. The flaw in that argument is, of course, that Avenatti is not yet admitted. All Avenatti has to do is to point out that, of course he'd stop appearing on TV to talk about the case just as soon as the court admits him. Boom. Done. Tell him that and send him my paypal address.
It's worth backing up a moment to talk about "Waddya gotta do to get pro hac vice admission anyway?" Ordinarily it is bone-dead simple. You get your state attorney licensing authority to give you a certificate of good standing, you get a local attorney to vouch for you, you fill out the form, pay the fee, and you are in. Avenatti's PHV petition is itself something of a thing of wonder, and is kind of worth backing up to look at and marvel:
https://www.courtlistener.com/recap/gov.uscourts.nysd.491943/gov.uscourts.nysd.491943.49.0_1.pdf
I mean, hey, he got the 2009 Orange County Trial Lawyer of the Year, and was voted best dressed in his high school yearbook, etc., but one little statement slipped by:
"5. There are no pending disciplinary proceedings against me in any State or Federal court."
Well, here we might end up talking about what the meaning of "are" is. I am not directly familiar with the disciplinary mechanism of the California bar. Orly Taitz, multiply sanctioned in federal courts, is an attorney in good standing, and by all accounts healthy gums. So, what constitutes a "pending disciplinary proceeding" or whether Calbar holds theirs in courts, I don't know. The only thing I know about Calbar is that if they invite you to speak at a CLE event, they get you a nice hotel room.
As Cohen's newly-filed motion notes:
The California Bar Association, of which Mr. Avenatti is a member, acknowledged in an
April 18, 2018 letter that it is currently investigating a complaint regarding Mr. Avenatti’s
alleged lack of fitness to practice law in the state. See Brooke Singman, Michael Avenatti being
investigated by California State Bar, Fox News (May 17, 2018), available at
http://www.foxnews.com/politics/2018/05/16/michael-avenatti-being-investigated-by-californiastate-bar.html.
This Court’s Local Rules provide that an applicant for pro hac vice admission to
the Court certify “whether there are any disciplinary proceedings presently against the applicant
and (d) the facts and circumstances surrounding any affirmative responses[.]” S.D.N.Y. Local
Case 1:18-mj-03161-KMW Civ. R. 1.3(c) (emphasis added). In Mr. Avenatti’s affidavit filed with this Court dated May 13,
2018, he stated “[t]here are currently no pending disciplinary proceedings against me in any
State or Federal Court.” ECF 46-1, at 3. Mr. Avenatti has not explained why he failed to
disclose the California Bar’s pending investigation into his conduct. Accordingly, his
submission does not comply with the requirements in the Court’s Local Rules.
Again, whether Calbar is "conducting an investigation" as Calbar has stated, rises to the level of a "pending disciplinary proceeding" may be something of an issue of semantics, which the court might want to look into (as well as whatever Avenatti might fill in on that topic in his next filing in reply to this opposition). Totally IMHO, it might have been better for Avenatti to mention that some jackass filed a bar complaint which is still in an investigational stage up front, and a little less Orange Queen of the 2009 Lawyer Festival.
The two remaining points are fairly nicely done by Cohen's counsel at McDermott Will and Emery, and really point out why it is a good idea to hire a lawyer when the focus of some part of a proceeding is about oneself. They jump on Avenatti's previous filing that he has a "right" to be admitted, by pointing out that there is no right to PHV admission (which is correct), and also have some fun with Avenatti's claim that absent his admission in this proceeding, then Daniels wouldn't have any legal representation. I mean, hey, other than by speaking Spanish at a sandwich shop, it's really hard to find a lawyer in New York City.
At the end, they set up an interesting proposition. Avenatti doesn't have a "right" to admission, and they've kicked up some dust over the claim that he spends a lot of time on television in apparent prospective violation of the relevant rule of practice in New York. But, since his admission is a disputed issue, the court may decide to examine Avenatti on any contested points before proceeding. If that happens, Cohen's motion proposes this:
We believe that it is vital that the Court inquire as to where Mr. Avenatti obtained the
SARs report(s) and related nonpublic bank records of Mr. Cohen. Those bank records and
reports are not attorney work product. They were purloined from protected federal agency files
and made public by Mr. Avenatti. If he fails to answer, he should not be admitted pro hac vice
in this proceeding before the Court.
It's an interesting proposition. As much as we want to see Cohen get nailed to the wall, courts don't work by conducting Twitter polls. This is a criminal proceeding. Among the top priorities in a criminal proceeding is safeguarding the rights of the defendant. The basic argument is "we can't trust Avenatti to act responsibility in connection with any confidential material he might come across by admission to this case". Hence, it is sort of relevant to ask, "what was the deal with the SARS" and if it comes down to him saying, I don't have to tell you (for which it's hard to think of a theory as to why), then the court can just as easily say that it doesn't have to let him into the case either.
So, this case, which is about the USAO-SDNY conducting a criminal investigation into Cohen (in case you forgot) and how to process the materials seized in the raid on Cohen's office is, for the time being, squarely all about Michael Avennati. Pending the special master wrapping up, the bulk of the court's attention is being sought by three parties to weigh the facts and law relating to Mr. Avennati's behavior.
On edit:
It figures - some late-breaking hip-shooting from Avenatti came in, which I posted downthread here:
https://www.democraticunderground.com/100210630928#post6
Talent Agency Pitching Avenatti/Scaramucci Reboot of Crossfire
http://variety.com/2018/tv/news/uta-avenatti-scaramucci-cnn-msnbc-1202813942/
The idea sounds like an update of “Crossfire,” the venerable CNN program that pit one liberal pundit (“on the left”) against a conservative commentator (“on the right”), and relied on everyone from Pat Buchanan and Robert Novak to Michael Kinsley, Tucker Carlson and James Carville. The program ran initially on CNN between 1982 and 2005, and enjoyed a short, second run in 2013 and 2014 when its panelists included Newt Gingrich, S.E. Cupp, Stephanie Cutter, and Van Jones.
Jay Sures, the co-president of UTA, is said to have been the executive sussing out interest in the potential project. The trio was spotted together at the recent White House Correspondents Dinner (above, pictured).
US Treasury FINCEN Issues Statement About SAR Availability
https://twitter.com/aviswanatha/status/997192039048646656
Can we calm the fuck down now?
Tweeter is WSJ reporter.
The "whistleblower" is interfering with a criminal investigation.
Profile Information
Gender: MaleHometown: Delaware
Member since: Fri Jan 20, 2006, 08:14 PM
Number of posts: 62,444
