CNN
—
Communications between adult-film star Stormy Daniels and an attorney who is now representing former President Donald Trump have been turned over to the Manhattan district attorney’s office, Daniels’ lawyer told CNN.
The exchanges – said to date back to 2018, when Daniels was seeking representation – raise the possibility that the Trump attorney, Joe Tacopina, could be sidelined from his defense of the former president in a case pertaining to Trump’s alleged role in a scheme to pay hush money to Daniels.
Daniels’ communications with Tacopina and others at his firm include details relating to Daniels’ situation, according to her current attorney Clark Brewster, who believes the communications show a disclosure of confidential information from Daniels.
Tacopina denies that there is a conflict or that confidential information was shared with his office. He says he neither met nor spoke to Daniels.
CNN has not seen the records in question. But legal ethics experts CNN spoke with said they could lead to limits being placed on the role Tacopina can play at trial or even his disqualification. The impact that the disclosure will have on the case will depend on the circumstances and the substance of the communications, the ethics experts said.
The scrutiny of Daniels’ alleged interactions with Tacopina and his firm, however, underscore how the Trump team is already being thrown curveballs in how they approach the yearslong investigation even before any charges against Trump have been formally brought.
While there have been signs that the investigation is wrapping up and that preparations are being made for an indictment, it is not clear yet that Trump will be charged or when those charges would be unveiled.
Brewster told CNN he handed the Daniels’ communications over to prosecutors after seeing Tacopina make public statements that Brewster believes were contrary to what’s evident in Tacopina’s and his firms’ emails with Daniels.
It would ultimately be up to a judge to decide whether the communications amount to a conflict of interest that requires disqualification or some other limitation on the advocacy Tacopina can do on behalf of the former president, if a case is brought against Trump.
A 2018 television interview that Tacopina did with CNN’s Don Lemon resurfaced in recent days, in which Tacopina suggested he may have been in contact with Daniels before she found another attorney in the hush money matter, which at the time was the focus of a federal investigation.
“I can’t really talk about my impressions or any conversations we’d had because there is an attorney-client privilege that attaches even to a consultation,” Tacopina said in the 2018 interview. As the old interview clip began making the rounds again, Tacopina’s firm issued a statement this weekend that said “there was no attorney-client relationship” – a point Tacopina stands by today.
On Tuesday, Tacopina told CNN that his 2018 interview comments “lacked clarity” and he said that he referenced an attorney-client privilege in the TV appearance “to terminate the inquiry, because someone on Stormy Daniel’s behalf did ask whether I would represent her, and I did not wish to discuss the matter on television.”
“However, those circumstances do not give rise to an attorney-client relationship in any form,” Tacopina said Tuesday.
A key question that may have to be hashed out if Trump is charged and the case goes to trial is whether the interactions Daniels is said to have had with Tacopina and his firm made her a prospective client.
Under the rules of the New York Bar, “a lawyer who has learned information from a prospective client shall not use or reveal that information,” even if no attorney-client relationship is established.
If Daniels did share with Tacopina confidential information, it could lead to him – or even his firm – being barred from cross-examining Daniels if she is put on the witness stand in a hypothetical trial against Trump.
Tacopina would not be allowed to use any information he obtained from Daniels in their communications against her as a witness, according to legal experts, and there could be an effort to screen what he knows off from the rest of the Trump team.
It would be up to the prosecutors or Daniels to raise objections to him or his firm cross-examining her, according to Stephen Gillers, a New York University School of Law professor who has written extensively about legal ethics and rules. The judge would then decide the matter.
Another legal ethics rule implicated by the situation, Gillers said, is one that says that a lawyer acting as a witness at a trial cannot also act as an advocate. That means that if Tacopina had information that contradicted Daniels’ testimony or undermined her credibility, he could not act as a witness for Trump while also being his lawyer.
There would have to be a real need for Tacopina as a witness for him to be disqualified, said Gillers. “He has to have critical testimony for the judge that the witness-advocate rule disqualifies him.”
The ethics rules are designed to protect not only Daniels, but also Trump himself, said Fordham Law School professor Bruce Green, who directs the university’s Louis Stein Center for Law and Ethics. Trump may be placed in an unfair position if his attorney feels he has to pull his punches in his defense because of communications he had with Daniels.
Still, Green called the disqualification question a “damned if you do, damned if you don’t” question for judges, since disqualifying a lawyer deprives a defendant the counsel of his or her choice.
It’s possible that prosecutors would ask that Trump waive any potential conflict, so that he could not raise the conflict as an issue if he is charged and convicted and seeks to appeal.
