The Cohen-Davidson Syndicate, Part 3

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There’s lots of news bubbling this evening on the Cohen raids front. But I want to flag a particular issue that requires more attention. I invite feedback from lawyers and prosecutors and for that matter lawyers who are engaged in criminal conduct.

We have new news on that third Michael Cohen husher, the one with Trump fundraiser and RNC deputy finance chair Elliott Broidy and an unnamed former Playboy model. As with the earlier two it was ‘negotiated’ by Cohen representing Broidy and Keith Davidson representing the unnamed woman. The settlement was for $1.6 million.

We find out tonight in a new report from theJournalthat Cohen’s fee was a flat fee of $250,000. (The Journal story that reports this notes that Cohen originally used Essential Consultants LLC to receive payment. After StormyGate blew up in January he started taking payments directly to his personal account.) In the earlier settlements, Davidson collected a 40% contingency fee – on the high end for such fees but not out of the ordinary. Assuming Broidy had to pay Cohen’s fee in addition to the $1.6M, it sounds like Davidson made a payday of some $640,000 on the deal and, between them, Cohen and Davidson got almost $900,000.

BEVERLY HILLS, CA – JUNE 24: Fred Sands and Elliot Broidy attend Dedication And Celebration Dinner For The Fred Sands Institute Of Real Estate At Graziadio School, Pepperdine University at the Beverly Wilshire Four Seasons Hotel on June 24, 2015 in Beverly Hills, California. (Photo by Stefanie Keenan/Getty Images for Pepperdine University)

It’s not a glorious line of work. But it’s not clear to me there’s anything legally or ethically amiss about the settlement or these fees, based on the facts I just set forth.

However …

As we’ve discussed before, there is a lot of circumstantial evidence that in each of these cases, Davidson and Cohen were operating in concert, rather than faithfully representing their nominal clients. Stormy Daniels’ lawyer Michael Avenatti has strongly suggested this. Karen McDougal makes this claim explicitly in her new lawsuit trying to break out of her deal with The National Enquirer. And there are particular facts that suggest this in the Broidy agreement. As the Journal explained in their earlier story, the unnamed woman retained Davidson. Davidson contacted and enlisted Michael Cohen to contact Broidy. Cohen contacted Broidy about the situation and Cohen became Broidy’s lawyer in the negotiation.

That last part of the chain – Cohen approaching Broidy on Davidson’s behalf and then signing on to represent Broidy in negotiating with Davidson – is critical one.

At a minimum that sounds like a highly questionable chain of events from a legal ethics point of view. I’m curious to hear from practicing lawyers how it strikes them. It at least creates some appearance of the two men operating as a team. But again, we’re beyond appearances. We have at least suggestive evidence from two other interactions and one former client accusing the two men of doing just that.

Here’s where I want to hear from lawyers, prosecutors and lawyers involved in on-going criminal conduct: if it is true that Davidson and Cohen were operating with coordination and as a team and not zealously representing the interests of their nominal clients, my sense is that this goes beyond violations of professional ethics. It quickly gets you into criminal fraud and even extortion. So how does this look to others with relevant professional experience? My sense is that these agreements alone – quite apart from however the money was moved through banks – could expose both men to severe legal jeopardy. Please let me know.

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