New York Bar “Referee” in Chevron Pollution Case Quits After Disclosure He Helped Union Carbide Escape Liability in India’s Bhopal Disaster
Paul Doyle Was Set to Judge Chevron’s “Slow Genocide” in Ecuador in Context of a Controversial Bar Complaint Against Human Rights Defender Steven Donziger
NEW YORK, NY - Paul Doyle, a corporate lawyer appointed by the New York bar to recommend possible discipline of prominent human rights defender Steven Donziger – the lawyer who helped Ecuadorian Indigenous peoples win a landmark $9.5 billion pollution judgment against Chevron – has resigned his post after the disclosure that he had helped Union Carbide escape liability in the Bhopal disaster in India that has killed an estimated 15,000 people.
A New York appellate court appointed Doyle in early July to determine whether Donziger should be disbarred after staff attorneys at the Manhattan grievance committee – apparently at the behest of Chevron -- deemed him an “immediate threat to the public order” and suspended him on an interim basis without a hearing based on the disputed civil findings of a New York judge that have been contradicted by 17 appellate judges in Ecuador as well as by extensive forensic evidence. Donziger, a Harvard Law School graduate, has worked for two decades to help Ecuadorian rainforest communities hold Chevron accountable for the dumping of billions of gallons of toxic oil waste into the Amazon rainforest in what is considered the world’s worst oil-related catastrophe, known globally as the “Amazon Chernobyl”.
In 2011, the affected Ecuadorian communities with Donziger’s help won a $9.5 billion judgment against Chevron in Ecuador -- the venue where Chevron insisted the case be heard. The Ecuador trial court found Chevron had systematically dumped toxic waste into streams and rivers, poisoning the drinking water of local communities. The pollution plunged the region into a humanitarian crisis that Donziger calls "a slow genocide.” Cancer, birth defects, and other diseases have killed, or threaten to kill, thousands of people. Three appellate courts in Ecuador – including the country’s Constitutional Court in an 8-0 ruling – have affirmed the judgment based on more than 100 expert evidentiary reports and 64,000 chemical sampling results.
(Here is a summary of the evidence against Chevron; here is a summary of the evidence on cancer rates in the area where Chevron operated.)
The New York bar’s decision to suspend Donziger – made by Chief Attorney Jorge Dopico and staff attorney Naomi Goldstein -- was harshly criticized by prominent lawyers, academics, and environmental activists for denying the lawyer a hearing where he could challenge Chevron’s allegations and the findings of Judge Lewis A. Kaplan. (See here and here; here is the voluminous scientific evidence relied on by Ecuador's courts to find Chevron liable.) In 25 years of legal practice, Donziger has not received even one client complaint and has been bestowed with numerous testimonials for his public service.
Dopico and Goldstein decided that the civil findings of Kaplan issued four years ago, in a lawsuit brought by Chevron in 2011, should be sufficient to suspend Donziger from the practice of law in 2018 as a "threat to the public order" without a hearing. Kaplan ruled in a non-jury civil trial that Donziger had committed “fraud” in Ecuador – a finding that has been discredited by evidence that Chevron’s main witness was paid $2 million by the company and later admitted lying under oath in Kaplan’s court after being coached for 53 days by Chevron lawyers prior to taking the stand. Forensic evidence also proved he lied; see this criminal referral letter of Chevron and its lawyers to the U.S. Department of Justice.
In seeking Donziger’s suspension as an “immediate threat” to the public order, Dopico and Goldstein refused to consider thousands of pages of evidence that he had submitted challenging Kaplan’s findings. (See this 12-page letter summarizing Donziger’s response and this legal brief.) The staff attorneys also failed to consider the Ecuadorian court decisions affirming the judgment against Chevron and they ignored evidence that Kaplan exhibited animus against Donziger and his clients during the trial. Kaplan continually called the Ecuadorians the “so-called” plaintiffs and mocked the case as “not bona fide” litigation. (Here is an article on Kaplan and here is a rebuttal of his findings.)
Doyle initially accepted his appointment to recommend Donziger's final sanction but then withdraw after the Ecuadorians disclosed that he had played a leading role in eliminating almost all of Union Carbide’s liability after the company’s chemical plant in Bhopal released deadly gases in 1984, considered the world’s worst industrial accident. An estimated 3,800 people were killed within days of the disaster and an estimated 15,000 people have died from ongoing exposures. Doyle, a partner at Kelly Drye & Warren, markets himself on his firm’s website as having taken 40 trips to India to help Union Carbide evade paying compensation, saving the company billions of dollars.
Doyle helped reduce Union Carbide’s liability to a paltry $1,500 per victim, which did not remotely compensate families for the death of loved ones, birth defects, blindness, a lifetime of disabilities, or loss of basic health functioning. "Like the Chevron pollution case in Ecuador,” said Greenpeace co-founder Rex Weyler, "the Bhopal disaster has became a global symbol of the legal system’s failure to provide adequate compensation to victims of industrial pollution.”
(Here is background on the Bhopal disaster; here are photos published in The Atlantic. Here are photos of the victims of Chevron’s Ecuador disaster.)
After his appointment as Donziger’s referee, Doyle proposed several dates in September to conduct a sanctions hearing based on the Kaplan findings. But Doyle abandoned his appointment after a press release appeared last week exposing his corporate-friendly background and work for Union Carbide. In the same press release, prominent attorney Rick Friedman – a leading U.S. trial lawyer, the former President of the Inner Circle of Advocates, and a best-selling author on trial practice – also harshly criticized the process that led to Donziger’s interim suspension without a hearing. See here.
Donziger said he thought Doyle's appointment was symptomatic of a deeper problem in the New York bar grievance process.
“Appointing a former Union Carbide lawyer, who blocked thousands of impoverished victims in India from receiving compensation, to preside over any aspect of a case involving Chevron’s poisoning of the people of Ecuador represents in my view an acute conflict of interest,” he said. In addition, Donziger criticized the fact that six of Judge Kaplan’s colleagues on the New York federal bench urged Dopico and Goldstein to suspend him without a hearing based on the judge's disputed findings, without disclosing the existence of contrary findings by three appellate courts in Ecuador. Furthermore, Dopico and Goldstein never disclosed to Donziger that Doyle had served as panel chair of the Manhattan bar disciplinary committee that is prosecuting his case, creating a second conflict of interest.
“Given his background, it would seem impossible for Mr. Doyle to be considered a neutral arbiter in this type of case," added Donziger. “Respectfully, I find it astonishing that the New York bar officials would not recognize these obvious conflicts up front. They also should have adhered to their own rules and not invoked an automatic suspension of an attorney based on disputed findings that are still being litigated in other jurisdictions. Once Mr. Doyle's background was revealed, he probably realized how the optics would look. Naturally, he withdrew. Nevertheless, the deeper problems — the denial of my due process rights and what appears to be favoritism toward Chevron — remain.”
Donziger's referral for bar discipline is steeped in its own controversy given that it seems to have been orchestrated by Judge Kaplan, who has been the subject of wide criticism for refusing to consider the environmental evidence against Chevron and for his biased comments from the bench. Several Ecuadorian villagers who attended parts of the Kaplan trial accused him of being racist. (See this account from a young Harvard lawyer who volunteered to help defend Donziger.)
Six of Judge Kaplan’s colleagues on New York’s federal trial bench in Manhattan, led by Judge Kevin P. Castel, sent a referral letter in late 2016 urging Jorge Dopico to disbar Donziger without a hearing based on their colleague's findings. Donziger said the Castel letter -- addressed to "Jorge" and showing an intimate personal familiarity with the Chief Attorney of the grievance committee -- ignored the many evidentiary problems with Kaplan’s decision and was not in keeping with the judicial obligation of impartiality. Donziger said the letter created enormous pressure for the bar staff attorneys to move against him.
“Bar staff attorneys answer by and large answer to judges,” Donziger said last week. “When six federal judges urge disbarment based on a high-profile decision of a colleague that has been contradicted by courts in other countries and whom they are obviously trying to protect, I would imagine it would be difficult for a bar staff attorney to resist the pressure. But that does not excuse the bar for refusing to give me a hearing where I can present critical and highly probative evidence prior to any suspension.”
In the meantime, the judges of the Manhattan appellate court who appointed Doyle are looking to appoint a new referee. Donziger said he suggests they appoint somebody from another jurisdiction who has no ties to the New York judiciary and who has a demonstrated record of impartiality when it comes to corporate accountability issues. “The system as currently set up is obviously populated by lawyers who have a cozy relationship with each other, who regularly appear before the six federal judges who recommended me for disbarment, and who are appointed by the very people prosecuting the case based on fabricated and disputed evidence,” said Donziger. “The system is structurally flawed and in my view has been hijacked by Chevron as an arm of a litigation strategy designed to evade liability to the Indigenous peoples of Ecuador.”
Weyler, the co-founder of Greenpeace and author, said Chevron's corruption of the judicial process to evade its Ecuador liability reaches "historic proportions."
“This entire bar grievance process in New York,” said Weyler, "is obviously being manipulated by Judge Kaplan, his colleagues, and Chevron’s powerful law firm to help an American company evade a liability to foreign plaintiffs. The proceedings against Steven, riddled with witnesses bribed by Chevron and fabricated testimony, stink to high heaven by any objective measure.”
“Doyle’s aborted appointment is only the most recent example of a process that has fast become an embarrassment to the New York judiciary,” said Weyler, who accused Chevron of “ecological crimes”after visiting Ecuador last year. "The corporate-dominated bar in New York City is trying to make Steven Donziger, a hero in the environmental community, an enemy of the state by claiming he is a ‘threat to the public order’. The attack is part of a broader corporate attack on activism we are seeing all over the country. Similar copycat ‘racketeering’ lawsuits to that used by Chevron have been filed against Greenpeace and other humanitarian and ecology advocates in an attempt to criminalize social activism. Not a single voluntary member of the New York bar disciplinary process appears even to practice in the area of human rights law or corporate accountability; in fact, most get paid to defend corporations.”
In 2009, Chevron had disclosed its defense strategy was to “demonize Donziger” rather than litigate on the merits. Later, a company official threatened the Ecuadorians with a “lifetime of litigation” if they continued with the case. After losing in Ecuador, Chevron retaliated by suing Donziger and his clients before Judge Kaplan for $60 billion. This astonishing sum is still considered the largest potential personal liability for anybody in U.S. history. However, just prior to the actual trial and after focus groups of potential jurors showed it would likely lose on the merits, Chevron dropped the financial damages claim to avoid a jury of impartial fact finders. That decision kicked the case to Judge Kaplan as the sole decision maker.
Attorney Rick Friedman, the past president of the Inner Circle of Advocates, said last week that he was “utterly dismayed” by the bar’s decision to deny Donziger the opportunity to present evidence to challenge Kaplan’s findings. “This type of decision not only violates fundamental due process, it is not in keeping with the American tradition of using judicial processes as a truth-seeking exercise,” he said. “It reminds me of something that might happen in Russia under Putin or Turkey under Erdogan, but it should not be happening in New York. The goal of the New York bar staff attorneys seems to be to suppress evidence that might prove Judge Kaplan got his decision wrong, not to seek the truth or ensure a fair adjudication. That’s a sad commentary on the state of the New York bar and unfortunately our legal profession because Steven Donziger should rightly be regarded as a hero for his work in Ecuador. This reflects far more poorly on the New York bar and Judge Kaplan than Steven Donziger, a person whom I deeply respect.”
While Chevron is targeting Donziger through the bar process, the Ecuadorians are advancing in Canada in their attempt to enforce their environmental judgment and seize company assets to pay for a clean-up. Canada’s Supreme Court has ruled unanimously in their favor on a key jurisdictional issue (see here) while company shareholders are putting enormous pressure on management – including new CEO Michael Wirth -- to settle the case because of the growing risk posed by the enforcement action. Chevron has an estimated $25 billion in assets in Canada; Donziger said he believes Chevron hopes to use his bar suspension to try to taint the validity of the Ecuador judgment before Canadian courts.
Donziger, who still has a law license to practice in the District of Columbia, has attracted wide support from prominent lawyers in the U.S. and Canada, musicians such as Roger Waters, Indigenous leaders such as Phil Fontaine (former National Chief of Canada) and Grand Chief Wilton Littlechild, and environmental activists including Rex Weyler and Atossa Soltani, the founder of Amazon Watch. The affected communities in Ecuador also have flooded Donziger with letters of support.