Donziger Asks New York’s Highest Court to Enforce Decision to Reinstate His Law License Following Attacks by Chevron
Lawyer Richard Supple Says Disbarment Risks “Chilling Effect” On Human Rights Lawyers Globally
New York, NY – In a case that potentially affects the due process rights of all lawyers nationwide, human rights attorney Steven Donziger is asking New York’s highest court to uphold a judicial officer’s decision to reinstate his law license after it was removed summarily without a hearing based on disputed findings of U.S. federal judge in a civil case without a jury.
Donziger, known for helping his indigenous clients in Ecuador win a historic $9.5 billion pollution judgment against Chevron in 2011 that has been upheld by six appellate courts, won a bar hearing held last year after presenting testimony from 15 prominent lawyers and academics who vouched for his integrity. In a 45-page decision, hearing officer John Horan – a former federal prosecutor – recommended the immediate reinstatement of Donziger’s law license after it had been suspended in 2018 without a hearing based on a determination he was “an immediate threat to the public interest.”
Donziger’s fight on behalf of his Indigenous clients against Chevron has galvanized significant support around the world. He has received support from 29 Nobel laureates; 475 lawyers and bar associations (here); and the bar councils of Ireland, France, Spain and Italy, among many others. Donziger recently was nominated for a prestigious international human rights award and his case has attracted prominent trial monitors from the American Bar Association, Harvard Law School, and the ACLU who have concluded his due process rights are being violated.
“The issues in this case are novel and present themselves in a unique and extraordinary context – disbarment of an attorney who sought to address extreme harm to Indigenous Ecuadorian people resulting from the pollution of their land by a large and powerful American oil company,” wrote J. Richard Supple, Jr., Donziger’s attorney, who filed a motion seeking an appeal (here) of Donziger’s disbarment before the New York Court of Appeals, the state’s highest court.
“Beyond Donziger’s own interest, the issues are of great public importance because, after being found guilty of massive damage, [Chevron] chose to defend itself by crushing Donziger for daring to hold it to account,” Supple wrote. “If allowed to stand as is, the large corporation’s successful effort to destroy an opposing public interest lawyer through ‘might rather than merit’ risks promotion of a chilling effect on lawyers in human rights litigation everywhere.”
The specific legal issue facing Donziger affects all lawyers nationwide – whether a civil finding of fraud in a non-jury case can be used to disbar an attorney without a hearing, especially when the evidence is disputed by new findings of facts by other courts. Unlike New York, many states in the U.S. do not allow a civil finding of fraud to deny an attorney the ability to earn a livelihood without a hearing, considering it a major violation of Constitutional rights. (Attorney licensing in the United States is governed at the state level.)
In Donziger’s case, New York’s intermediate appellate court ordered disbarment for the first time in its history based on civil findings of fraud in a non-jury case that have been rejected by multiple court decisions in other jurisdictions, according to Donziger’s counsel.
Horan’s decision to reinstate Donziger’s law license was reversed six weeks ago in a 2-page summary opinion by an intermediate appellate court. That court ordered Donziger disbarred based on findings from 2014 by Judge Lewis A. Kaplan that have been rejected by several appellate court in Ecuador and Canada, including the Supreme Courts of both countries. Kapan’s main finding that Donziger approved a bribe of a trial judge in Ecuador was based on testimony from a Chevron witness paid at least $2 million by the company who later admitted under oath that he had lied repeatedly to frame Donziger.
The witness, Alberto Guerra, was given $38,000 cash in Ecuador by Chevron investigators for his cooperation. Chevron later moved Guerra along with his extended family to the United States, where the company paid him a monthly salary 24 times higher than his salary in Ecuador and coached him for 53 days prior to the presentation of his false testimony. (See this legal brief for details on Chevron’s payments.)
The decision to disbar Donziger, made last August, invoked the doctrine of collateral estoppel which denied Donziger the right to challenge Kaplan’s bribery finding even though Guerra had admitted lying and other new evidence emerged that cast serious doubt on Kaplan’s broader decision.
“Virtually all the hallmarks of a fair application of collateral estoppel, as defined by this court’s prior decisions, were absent” in the decisions to disbar the attorney, wrote Donziger’s attorney Supple, a former prosecutor and New York attorney.
Supple wrote that “new, reliable evidence disproves or casts serious doubt” on Kaplan’s key finding of bribery; that inconsistent judgments from different courts should have allowed Donziger to present evidence; and that the Kaplan proceeding – called a “Dickensian farce” by prominent attorney John Keker – was fundamentally unfair and tainted by Chevron’s use of 114 lawyers to try to “crush” the human rights advocate, who represented himself alone for much of the proceeding.
The court that overturned the hearing officer’s decision in favor of Donziger “did not adhere to the prior precedent of this Court regarding collateral estoppel,” Supple wrote. “By failing to adhere to controlling law, the Appellate Division issued a drastic order of preclusion, effectively commanding that Donziger remain silent at his hearing.”
Donziger for 10 years has been targeted by Chevron and Judge Kaplan in an avowed “demonization” campaign designed by the oil company to distract attention from its deliberate dumping of 16 billion gallons of cancer-causing toxic oil waste onto indigenous ancestral lands in the Amazon, as confirmed by voluminous scientific evidence before Ecuador’s courts that Kaplan refused to consider. Chevron operated in Ecuador from 1964 to 1992 under the Texaco brand. (See this summary of the evidence against Chevron.)
Chevron’s pollution has decimated Indigenous groups and caused an outbreak of cancer that has killed or threatens to kill thousands of people, according to independent peer-reviewed health evaluations in the region. Chevron has used at least 60 law firms and 2,000 lawyers and legal personnel on the case in what is considered the most expensive corporate defense ever.
In his decision in support of Donziger’s ability to practice law, Horan said, “The extent of his pursuit by Chevron is so extravagant, and at this point so unnecessary and punitive, that while not a factor in my recommendation, is nonetheless background to it.”
“Several witnesses, all distinguished in their respective fields, testified as character witnesses,” said Horan, citing a list that included prominent attorneys Deepak Gupta and John Keker, rock musician Roger Waters, founder of Pink Floyd, and Amazon Indigenous leader Domingo Peas.
“Assessment of character is not an exact science, but we can all agree that the essential components are honesty, integrity, and credibility,” Horan observed. “It is far from clear that [Donziger] is lacking in those qualities as the committee argues.”