Legal Community “Shocked” by NY Bar Decision to Suspend Renowned Attorney Without a Hearing After He Helped Win Pollution Judgment Against Chevron
Decision Is in Line With Chevron’s Avowed Campaign to “Demonize” Steven Donziger, Who Has Fought the Company for Decades
NEW YORK - A New York state appellate court has taken the highly unusual step of suspending the law license of renowned corporate accountability attorney Steven Donziger without a hearing, leading to “shock” among lawyers who have followed his long-running battle with Chevron and the powerful law firm Gibson Dunn & Crutcher over the clean-up of the oil major’s massive pollution in Ecuador's Amazon.
To short-circuit the legal process to deny Donziger a hearing, staff attorneys at the state bar grievance committee (which regulates attorney conduct) characterized him as an “immediate threat to the public order” even though he has not received even one client complaint in 25 years of legal practice and has won numerous honors and testimonials for his public service work. Donziger is most well-known for helping Ecuadorian Indigenous groups and farmer communities win a $9.5b judgment against Chevron after courts in the South American nation – where Chevron insisted the trial be held -- found the oil giant had deliberately dumped billions of gallons of toxic oil waste onto ancestral lands in Ecuador’s Amazon, decimating local communities and causing a staggering increase in cancer rates that has killed or threatens to kill thousands of people. (See this summary of the evidence against Chevron.)
The New York bar grievance committee, led by staff attorneys Jorge Dopico and Naomi Goldstein, decided to deny Donziger a hearing based solely on allegations of misconduct produced in a retaliatory civil “racketeering” (or RICO) case brought by his longtime adversary, Chevron, even though evidence from that case has since been largely disproven and shown to be the product of enormous cash payments by the oil company to an admittedly corrupt witness who later admitted he lied under oath, said Aaron Marr Page, a human rights lawyer who is working with Donziger as he fights off retaliatory attacks by Chevron in numerous forums. The controversial findings in the Chevron RICO case – which have been rejected by 17 separate appellate judges in Ecuador – were issued in 2014 by Lewis A. Kaplan, known as a pro-business U.S. federal judge who held a strong animus against Donziger and his Ecuadorian clients as outlined in this article by Greenpeace co-founder Rex Weyler.
Dopico and Goldstein made the decision to move against Donziger without a hearing after being urged to do so in a referral letter sent by several colleagues of Kaplan who sit with him on the New York federal trial bench. In a referral letter signed by Judge Kevin P. Castel, who has served on the bench with Kaplan for several years, Dopico was told to prevent Donziger from challenging Kaplan’s disputed findings even though he had available stunning new evidence that shows Chevron’s main witness – to whom it had paid $2 million – had lied repeatedly on the stand after being coached for 53 days by company lawyers at Gibson Dunn, as explained in detail in this 33-page rebuttal. The witness, Alberto Guerra, admitted under oath in a separate proceeding that he had lied as a way to get paid more money from Chevron’s lawyers at Gibson Dunn, who were managing him.
(See here for background on Chevron’s fabrication of evidence which is also summarized in this criminal referral letter to the U.S. Department of Justice. Here is legal brief submitted to the U.S. Supreme Court outlining Chevron’s malfeasance. Here is a summary of Gibson Dunn’s fabrication of evidence and other ethical violations.)
Page said it was repugnant to see Chevron’s self-interested demonization campaign against Donziger being embraced, without any apparent analysis, by the staff attorneys at the bar grievance committee. Contrary to the usual process, Dopico and Goldstein refused to meet with Donziger before they launched the process to disbar him without a hearing. They also refused to respond to a detailed letter from Donziger (available here) sent in February 2017 outlining the many flaws in Kaplan’s decision; and, in yet another unusual move, they appointed as an outside “pro bono” prosecutor a lawyer (George A. Davidson) from a major corporate firm with significant ties to the oil industry.
Page said he was particularly shocked by the characterization of Donziger as an “immediate threat to the public order” based on a “highly flawed” legal decision issued over four years ago. “Steven Donziger has dedicated his entire career to helping the powerless and marginalized members of society, from Indigenous peoples in Ecuador to indigent criminal defendants in the United States, confront some of the most entrenched interests in our society,” said Page. “I can’t understand how this can be recast as a ‘threat to the public order’ by New York courts.”
Some longtime New York lawyers say that the legal community is unnerved by the prospect that civil judgments – which are obtained by a low standard of proof and often (as in Donziger’s case) without a jury of impartial fact finders – can be used to prevent attorneys from even arguing in their own defense in bar disciplinary proceedings, as New York is doing to Donziger in this particular case.
Marty Garbus, an esteemed New York First Amendment lawyer who has reviewed the Ecuador pollution file and who filed an amicus brief on behalf of Donziger, said he was troubled by the decision to suspend Donziger without a hearing. “What the bar grievance committee and the judges of the First Department are doing to Steven Donziger looks bizarre and clearly does not comport with due process, especially given that Judge Kaplan's civil findings are disputed and contradicted by the findings of other courts,” said Garbus. “Judge Kaplan’s civil judgment was based on testimony from a paid fact witness who subsequently admitted to lying and it completely excluded the evidence of Chevron’s toxic dumping in Ecuador. Kaplan also refused to consider contextual evidence of Chevron’s judicial misconduct in Ecuador.”
“This decision must be seen in light of a line of cases where the power of the legal bar is put to use for political reasons, to punish those who too aggressively take on the corporate legal establishment,” Garbus concluded.
Professor Charles Nesson, the William F. Weld Professor of Law at Harvard, has closely investigated the case given that Donziger was a former student. Nesson, who made the Ecuador case a major theme of his trial class last year at Harvard, said he was “dismayed” and “shocked” by the way Donziger is being treated by New York courts.
“It appears to me that the judge in the civil case, Lewis A. Kaplan, has written orders clearly backing away from his own findings of bribery in the civil judgment that the bar committee is arguing that Donziger cannot contest,” said Nesson, referring to a decision Kaplan issued in February of this year ordering Donziger to pay Chevron’s court costs that seemed highly defensive about his reliance on the Guerra testimony. “If the judge in the civil case clearly no longer fully believes in his own evidence, how can it be fair to use that evidence to impose a sanction and to prevent an attorney from making arguments in his defense? Further, there is ample other extrinsic evidence that demonstrate that Kaplan’s findings were erroneous.”
Weyler, the co-founder of Greenpeace, called Donziger a “hero” for standing up to Chevron and the bar. “This is always the way the status quo power structure protects its own,” said Weyler. “The more frightened they are by the truth, the greater their lies. They did this to anti-slavery activists centuries ago, to the suffragettes, to Gandhi and Martin Luther King, to indigenous leaders throughout the world.
“This shameless pandering by the NY judiciary to power and money will be exposed in time,” said Weyler.
“For more than two decades Steven Donziger has taken on one of the largest and most important fights for corporate accountability in history on behalf of indigenous and rainforest communities,” said Paul Paz y Miño, Associate Director of the environmental group Amazon Watch, in Oakland, CA. “His ability to stare down one of the most vicious corporate attacks ever serves as an inspiration to untold numbers of people around the world. It is just stunning that the New York bar authorities, rather than recognizing what Donziger has accomplished for humanity, now seem to have allowed themselves to become an arm of Chevron’s and Gibson Dunn’s patently unethical litigation strategy. This abdication of responsibility by public officials is yet another example of the pressure environmental and human rights defenders are subjected to for their successful work challenging corporate power.”
Leading civil rights attorney Jason Flores-Williams, who is based in Denver and is a longtime admirer of Donziger’s work, agreed. “Steven Donziger is a man of great integrity who has devoted most of his career to fighting on behalf of the voiceless and dispossessed. That the New York state bar would sanction him for fighting Big Oil while doing nothing about sanctioning lawyers who serve the greed and corruption of Wall Street is a sad commentary on the state of our legal profession.”
The decision to deny Donziger a hearing effectively continues a campaign started by Chevron in 2009 to “demonize Donziger” as part of its long-term litigation strategy, according to an internal company email. Chevron and at least 115 lawyers it hired at the Gibson Dunn firm – part of team of 2,000 lawyers used by the company to fend off the environmental claims since the case was filed in 1993 -- were responding to Donziger’s tenacious advocacy over two decades on behalf of villagers who won the judgment against Chevron after the company insisted the trial be held in Ecuador, said Page. The Gibson Dunn team, led by former New York City Deputy Mayor Randy Mastro, is known as a bullying and notoriously unethical group of attorneys who will do virtually anything to rescue their corporate clients from large liabilities, said Weyler in his article.
The Ecuador judgment won by Donziger and his clients in Ecuador has been affirmed on appeal three times, most recently last week by Ecuador’s Constitutional Court in an 8-0 decision; it is also is being enforced against Chevron in Canada, where the Ecuadorians have won the unanimous backing of the country’s Supreme Court and where they have racked up multiple appellate court victories (see here for background).
Donziger in his 2017 letter to the grievance committee promised his full cooperation with any investigation, but months later and without contacting him Dopico and Goldstein moved for his immediate suspension. In his letter, Donziger characterized the referral letter to Dopico from Judge Castel urging his disbarment as showing “an entirely inappropriate and injudicious approach to this matter” that stands “in stark contrast to the judicial obligation of impartiality.” He also said in reference to the Castel letter: “The prosecutorial tone – and the woefully incomplete description of the true facts and circumstances – bespeaks an interest in vindication of a colleague rather than a request for an impartial inquiry.”
A detailed report issued last year by lawyers for the Ecuadorians, Chevron’s RICO Fraud, identifies just some of the profoundly disturbing flaws in Judge Kaplan’s civil proceeding, including:
- Kaplan relied for his finding of “bribery” on the testimony of an admittedly corrupt former Ecuadorian judge, Alberto Guerra. Guerra was `paid $2 million by Chevron; the witness, after being coached for 53 days by Chevron lawyers at Gibson Dunn, later admitted he lied on the stand. Donziger was not allowed to present evidence to the bar authorities that the witness recanted much of his testimony.
- Kaplan’s finding that the trial court judgment in Ecuador was “ghostwritten” was rejected by three appellate courts in that country; a forensic report presented in a parallel arbitration proceeding by a global expert proved the decision against Chevron was written by the trial judge, but Kaplan refused to consider the report. (See here.)
Page added that he has worked with Donziger in Ecuador for years and has seen firsthand how he is beloved by his clients and deeply respected throughout the environmental and human rights communities in Ecuador and the United States. “Steven Donziger is one of the most powerful assets we have in the fight for corporate accountability and global justice,” said Page, who wrote an article for the Huffington Post seeking support for Donziger, who has received numerous letters of encouragement from his clients.
For Donziger’s legal brief contesting his suspension by the NY bar without a hearing, apparently ignored by the New York judges, see here. For exhibits to Donziger’s filing, see here. For a statement from Donziger in response to his suspension, see here.