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Does Stormy Daniels Have a Legal Malpractice Action against Michael Avenatti?

If Stormy Daniels' allegations about Michael Avenatti's representation are true, then Daniels likely has a legal malpractice action against Avenatti, and he could face California State Bar discipline.

Even though Michael Avenatti represented Stormy Daniels in cases outside California, Avenatti is subject to the California Rules of Professional Conduct. See California Rules of Professional Conduct (CRPC), rule 8.5(a) ["A lawyer admitted to practice in California is subject to the disciplinary authority of California, regardless of where the lawyer's conduct occurs."].

It has been reported that Avenatti (a) filed a defamation lawsuit against President Trump on Daniels' behalf without her authority (subjecting her to a nearly $300,000 adverse judgment); (b) failed to keep Daniels up to speed on litigation he pursued for her; (c) was paid by a legal defense fund and did not provide Daniels an accounting of same; (d) publicly disclosed the terms of his representation of Daniels; (e) used Daniels' face and name without permission and (f) attributed statements to Daniels she never made. If any of these claims are proven true, then Avenatti could face a legal malpractice case and State Bar Discipline.

Can Attorneys File Lawsuits Without Client's Consent?

CRPC, rule 1.2 says clients, not their lawyers (much less their purported lawyers), are in charge of their own destiny. Lawyers must abide by their clients' decisions, and lawyers may never file lawsuits without client authorization. "Corruptly or willfully and without authority appearing as attorney for a party to an action or proceeding constitutes a cause for disbarment or suspension." Business & Professions Code section 6104. Therefore, if Daniels' claim that Avenatti sued President Trump without Daniels' authority is true, then Avenatti could face a malpractice claim for the amount of the adverse judgment (approximately $300,000), and the State Bar could initiate an action against Avenatti for this conduct.

What Information Must Attorneys Communicate to Clients?

CRPC, rule 1.4 requires attorneys to keep their clients fully informed of their matters. That duty includes reasonably consulting with the client about how to achieve the client's objectives and keeping the client reasonably informed about "significant developments" about the representation. Clearly, hiding critical information from a client is prohibited conduct.

Can Attorneys Receive Compensation From Someone Other Than the Client?

CRPC, rule 1.8.6 prohibits attorneys from accepting compensation from one other than the client, unless "(a) there is no interference with the lawyer's independent professional judgment or with the lawyer-client relationship; (b)" the attorney maintains the attorney-client privilege and "(c) the lawyer obtains the client's informed written consent" to accept payment from someone other than the client.

CRPC, rule 1.15 requires lawyers to deposit all funds they receive for their clients' benefit into a trust account. Lawyers must notify clients of the receipt of such funds and provide a written accounting to clients.

If Daniels' allegations are true, it appears Avenatti did not meet these requirements.

Are The Terms Of The Attorney-Client Relationship Privileged?

Avenatti is reported to have said that Daniels agreed to pay him $100 to file the lawsuit against President Trump and that the referenced legal defense fund would take care of the remainder of his fee. "A written fee contract shall be deemed to be a confidential communication . . . ." Business & Professions Code section 6149. If the agreement was oral, it would still be a privileged communication under Evidence Code section 954. Accordingly, unless Daniels gave Avenatti permission to disclose the terms of this agreement, he was barred from doing so because the terms of the agreement are privileged.

Can a Lawyer Use His Public Figure Client's Face and Name In the Media Without Permission?

"The relationship between an attorney and client is a fiduciary relationship of the very highest character. All dealings between an attorney and his client that are beneficial to the attorney will be closely scrutinized with the utmost strictness for any unfairness." Lee v. State Bar (1970) 2 Cal. 3d 927, 939. Ultimately, lawyers must honor client's wishes. CRPC, rule 1.2 says, "a lawyer shall abide by a client's decisions concerning the objectives of representation and . . . shall reasonably consult with the client as to the means by which they are to be pursued." While there may not be a rule right on point, Avenatti should not use Daniels' celebrity without her permission.

Can a Lawyer Ever Falsely Attribute Statements to a Client?

NO!

Several rules require lawyers to always be honest. For instance, CRPC, rule 3.3 prohibits attorneys from making false statements to courts. See also Business & Professions Code section 6068. Dishonesty is grounds for disbarment. See, Roark v. State Bar of Cal. (1936) 5 Cal. 2d 665.

Moreover, lawyers have a duty of loyalty to clients that extends beyond the termination of the attorney-client relationship. See Flatt v. Sup.Ct. (Daniel) (1994) 9 Cal.4th 275 and Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811.

Mark Wilson, a trial attorney, has won nearly every case he has tried or arbitrated. He lost only one jury trial and obtained a complete reversal on appeal. Mr. Wilson represents clients in business litigation and legal malpractice cases and was named in the 2018 SuperLawyers Top 50 Orange County list. Mr. Wilson is a California State Bar certified specialist in Legal Malpractice Law.

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