A Trump lawyer risks being disqualified from his criminal defense because Stormy Daniels considered hiring him 5 years ago, experts say
Stormy Daniels reached out to Joe Tacopina's law firm in 2018 asking if he would represent her.
Now Tacopina represents Donald Trump in a potential criminal case over payments to Daniels.
Depending on what Daniels told Tacopina, he could be disqualified in the case, experts say.
In March 2018, attorney Joe Tacopina went on CNN to talk about lawsuits surrounding payments that Michael Cohen made to Stormy Daniels, a pornographic film actress who maintained she had an affair with then-President Donald Trump.
Cohen said he paid Daniels, whose real name is Stephanie Clifford, on Trump's behalf so that she would stay quiet about the alleged affair ahead of the 2016 presidential election. By 2018, the hush-money payments were public knowledge, and Daniels had sued both Cohen and Trump over the drama.
Tacopina disclosed a personal connection to the events: Before Daniels hired the lawyer Michael Avenatti, she had contacted Tacopina's law firm and asked about hiring him.
The host, Don Lemon, asked if Daniels "may have signed NDA under duress, and was she afraid for her physical safety."
Tacopina didn't end up taking on Daniels as a client. Still, he said in the interview, he couldn't talk in detail about the situation.
"Yes, of course, and I can't really talk about my impressions or any conversations we had because there is an attorney-client privilege that attaches even to a consultation," Tacopina told Lemon in response.
Fast forward to now, and Tacopina is a lawyer for Trump.
He's representing the former president in a potential criminal case as a Manhattan grand jury convenes to hear evidence and weigh whether to bring criminal charges against Trump in connection with the hush-money payments to Daniels.
That 2018 CNN exchange has come back to haunt Tacopina, raising questions about whether any interactions between him and Daniels disqualify him from representing Trump.
In an interview with Insider this week, Tacopina said a representative for Daniels had reached out to his office in 2018 saying she wanted legal representation for "some nondisclosure agreement regarding Trump in a settlement and whatnot."
Tacopina declined to take on the case, he said. And the communications from Daniels didn't create a conflict of representation, according to Tacopina.
"It's a joke," he told Insider. "I have no attorney-client privilege with her. I didn't represent her. I never met her, never spoke to her."
Lawyers have obligations to even prospective clients
Daniels may have a different version of events.
Clark Brewster, an attorney currently representing her, told CNN that he turned over communications between Daniels and Tacopina to the office of Manhattan District Attorney Alvin Bragg, which is overseeing the ongoing investigation into the hush-money payments.
Even if Tacopina didn't take on Daniels as a client, lawyers still have obligations to prospective clients, legal experts say.
The New York State Bar Association's rules of professional conduct, used by state courts, forbid attorneys from taking on a client "with interests materially adverse to those of a prospective client" in related cases if that same lawyer got information from the prospective client "that could be significantly harmful to that person in the matter." The American Bar Association has a similar rule.
These rules could potentially be a problem for Tacopina, according to Jan Jacobowitz, a legal-ethics advisor and professor of professional responsibility and ethics at the University of Miami School of Law.
"Anything a prospective client tells you has to remain confidential, and you have a conflict if that information could be used against the person in a subsequent representation of somebody on the other side," Jacobowitz told Insider. "In this case: Trump."
Tacopina, however, said his interactions with Daniels didn't create a conflict, and that he ran the scenario by an ethics attorney to be sure.
"Any time someone calls an office and says, 'We're interested in representation,' the attorney-client privilege doesn't attach to the point where I'd be conflicted out of a later representation," he told Insider.
Daniels's lawyer reportedly believes she gave Tacopina confidential information
Stephen Gillers, a professor of legal ethics at New York University law school, said Tacopina may be disqualified from representing Trump if she shared "confidential" information.
That appears to be the position of Daniels' attorney. Brewster told CNN he believes the communications between Daniels and Tacopina show that she did disclose information that was confidential, possibly giving Bragg's office an opening to seek to disqualify Tacopina from representing Trump in the case.
Tacopina vehemently rejected the notion that Daniels's entreaties included confidential information.
"Had I met with her, sat down with her, taken the case, or even just learned things that I could subsequently use against her — that's one thing," Tacopina said. "That wasn't the case here. Because I'd never met with her. I never spoke to her. I never reviewed any documents she had."
If a judge disagrees with Tacopina, the scope of disqualification could vary, Gillers said. If any communications with Daniels would turn him into a witness for the trial, he couldn't represent Trump at the same time, according to Gillers. The disqualification could also be limited just to cross-examining Daniels if she would be called as a witness herself, Gillers said.
"If Tacopina, hypothetically, learned information from Daniels that could impugn her credibility as a witness he could not cross-examine her on behalf of Trump," Gillers said.
Representatives for the Manhattan district attorney's office didn't immediately respond to a request for comment. Requests for comment sent to Brewster and an email address associated with Daniels weren't immediately returned, either.
Trump, while predicting he would be arrested in connection with the grand jury probe, has denied all wrongdoing. He said he never had an affair with Daniels, called Cohen a liar, and said Bragg's investigation is illegitimate.
Daniels was ultimately represented by the attorney Michael Avanetti for her 2018 lawsuits against Trump and Cohen. Her defamation case against Trump was dismissed and she was ordered to pay his legal fees. Her lawsuits against Cohen were settled. In 2022, Avenatti was found guilty of stealing $300,000 from a book advance meant for Daniels, among other financial crimes.
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