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Stormy with an Amended Complaint

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Posted on March 26 2018

For those who don’t know, generally speaking a Cease and Desist letter can be toothless and viewed as an empty threat.   Meaning if you have an actionable injury, you simply file suit. The irony of Cohen’s Counsel sending Ms. Clifford/Daniels a Cease and Desist Letter, the reality is Trump/Cohen prove her point:

Trump & Cohen act like litigious bullies 

 

See copy of the C&D letter sent last night shortly after the airing of the 60 Minutes Interview. If my memory serves me correctly it was orginally published by the NYTs or Fox News.

open source link to C&D letter here Cease & Desist Letter

 

And then, just like that, Ms. Daniels/Clifford by her counsel Michael Avenatti filed this amended complaint. I’ve only read through the complaint once. Below are a few snippets that might be problematic for Cohen and by proxy Trump.

When I say: “Silence is the Refuge of the wise”…in the context of legal matters, it really is.

And here’s my proof in concept.  Open Source Link to Ms. Daniels/Clifford’s First Amended Complaint

Clifford v Trump v Cohen Amended Complaint

Page 6, paragraph 27 which reads in part:

  • …”private transaction in 2016, 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.”

 

  • Mr. Cohen concluded his statement by stating: “Just because something isn’t true doesn’t mean that it can’t cause you harm or damage. I will always protect Mr. Trump.” (emphasis added).

 

  • “This statement was made in writing by Mr. Cohen and released by Mr. Cohen to the media with the intent that it be widely disseminated and repeated throughout the United States.
    Attached hereto as Exhibit 3 is a true and correct copy of Mr. Cohen’s Statement “  (emphasis added)

 

And now on to paragraph 28, which also reads in part:

  • “Mr. Cohen’s statement was not a mere statement of opinion (emphasis added)… reasonably understood to be a factual statement implying or insinuating that Ms. Clifford was not being truthful in claiming that she had an intimate relationship with Mr. Trump(emphasis added)

 

 

Moving along to paragraph 30:

  • “Moreover, to the extent any such obligations did exist, they were breached and/or excused by Mr. Cohen and his public statements to the media” (emphasis added)

 

 

And that takes us to Page 7 & 8, paragraphs 31-33:

Yes I may have already tweeted last night the NY Bar and Canons. Based on reading these paragraphs, it appears that Ms Daniels/Clifford’s Attorney shares my previous assertion about Mr. Cohen potentially vioating Canon 1 et al.

  • Rule 1.4 of the New York Rules of Professional Conduct governing attorneys has required Mr. Cohen at all times to promptly communicate all material information relating to the matter to Mr. Trump, including but not limited to..

 

  • any decision or circumstance with respect to which [Mr. Trump’s] informed consent [was] required” and “material developments in the matter including settlement or plea offers.” (emphasis added)

 

 

 

And now page 8, paragraphs 34 & 35:

  • “Mr. Cohen flagrantly violated his ethical obligations
    and the most basic rules governing his license to practice law (which is highly unlikely), there can be no doubt that Mr. Trump at all times has been fully aware of the negotiations with Ms. Clifford, the existence and terms of the Hush Agreement, the
    payment of the $130,000.00, the use of EC as a conduit, and the recent attempts to intimidate and silence Ms. Clifford by way of the bogus arbitration proceeding.”

 

  • “Because there was never a valid agreement and thus, no agreement to arbitrate, any subsequent order obtained by Mr. Cohen and/or Mr. Trump in arbitration is of no consequence or effect. “

 

Summary

By stating Mr. Cohen defamed Ms. Daniels/Clifford’s this could impact his ability to practice law. Why? Because lawyers are officers of the Court and are bound by Ethical & Professional obligations. What is alleged in this Amended Complaint, absolutely problematic for Cohen.

 

That said, this is not the last of this saga. Remember that Avenatti has publicly stated he & his firm have been contacted by 6 OTHER women.  Two of whom also have a Non-Disclosure Agreement. At the end of the day, President Trump has used the White House podium to tout “a Judicial win” and today Deputy Press Sec Raj Shah stated, these allegations “are false”…which now opens them up to potential liabilities or at the minimum, discovery and/or depositions. As we found out last week a Judge ruled in favor of Plaintiff Summer Zervos, who previously filed a lawsuit against Donald Trump, stating he had defamed her. (See previous blog entry on that subject)

Which could mean, Ms. Daniels/Clifford’s may have a legitimate argument to name the White House Depty and current Press Secretary. So stay tuned because I have a feeling this is just Episode 4 of Season 1.

Also, I would NOT be surprised if Cohen/Trump attempt to seek a gag order. Most Judges do NOT like attorneys arguing their case in the Court of Public opinion. Notwithstanding I am repeatedly surprised at how well Avenatti & Daniels/Clifford’s have masterfully played and beat Trump at his own media game.

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