LOS ANGELES – In a statement published by the Daily Beast on Wednesday, Stormy Daniels said her attorney Michael Avenatti “filed a defamation case against Donald Trump against my wishes.”
Given that the ill-considered defamation lawsuit has since been subject to a successful anti-SLAPP motion by Trump’s attorneys, resulting in the awarding of attorney’s fees to Trump by the judge hearing the case, one can certainly understand why Stormy would be unhappy about the outcome of the lawsuit. If it’s true she objected to the idea of filing the claims in advance of Avenatti doing so – and, more to the point, if a court were to accept as true her allegation to that effect – the consequences for Avenatti could be significant.
“An attorney can only file a lawsuit at the client’s direction,” attorney Larry Walters told YNOT. “Filing suit without the client’s consent is a serious matter, which could lead to potential malpractice claims and bar discipline.”
At this point, based on what is publicly known, it’s also very hard to say what Stormy means when she says Avenatti filed the lawsuit against her wishes. Did Stormy object to the idea of filing in a way which is independently confirmable? Did she initially object to filing, then get talked into it by Avenatti?
“We do not know whether Stormy Daniels is expressing some buyer’s remorse after the recent anti-SLAPP ruling on attorney’s fees, or if she never authorized the suit,” Walters noted. “Interestingly, we did not see any complaints about lack of authority to sue until recently.”
What is certain, however, is that if Stormy were to press ahead with a complaint against Avenatti and her complaint was found to be valid, the repercussions for Avenatti could be substantial.
“If her attorney did not have client authorization to sue, and the court accepts that position, it is possible that attorney’s fees could be imposed exclusively against her attorney,” Walters said. “Federal judges have the authority to impose sanctions against attorneys who pursue unreasonable or vexatious claims which increase the cost of litigation. (See 28 U.S.C. s. 1927). If fees are awarded against her, only, and suit was filed without authorization, Stormy could potentially seek reimbursement of those fees in a future malpractice action.”
Naturally, all this assumes that Stormy (a) is at all interested in pressing some manner of complaint against Avenatti, and (b) could prove her claim to the satisfaction of the trier of fact, be it a judge or jury.
“Absent some written objection by Stormy before the ruling on the anti-SLAPP motion, any claim based on lack of authority to sue would be a swearing match that would have to be resolved by a judge or a jury based on the credibility of the witnesses,” Walters said.
For the moment, at least, the question is academic. Nothing in Stormy’s statement to the Daily Beast suggests she’s about to file a complaint against Avenatti. For that matter, she may continue to have him represent her, from the sound of it.
“I haven’t decided yet what to do about legal representation moving forward,” Stormy said in her statement. “Michael has been a great advocate in many ways. I’m tremendously grateful to him for aggressively representing me in my fight to regain my voice. But in other ways Michael has not treated me with the respect and deference an attorney should show to a client.”
Of course, it’s also possible that when Stormy says Avenatti filed the lawsuit against her wishes, she doesn’t mean he literally ignored her explicit instructions not to file the claim. She may have expressed reservations about the idea, but then acquiesced in a way which Avenatti reasonably believed to be expressing her approval.
Even some of Avenatti’s harshest critics in the legal community, like attorney Marc Randazza (who, in comments to YNOT earlier this month called Avenatti a “total moron” and “intellectual lightweight”) have expressed doubt that Avenatti would be so foolish as to file a lawsuit over the explicit objection of his client.
i feel dirty sticking up for Avenatti … but maybe he can't completely refute the claim simply because he's got ethical binds on his wrists?
I mean, or he's a fucking imbecile who did it … but I honestly find that really hard to believe — even about him.
— Marc J. Randazza 🇺🇸 🇮🇹 🇧🇷 (@marcorandazza) November 29, 2018
