Wednesday, March 6, 2019

Questions Raised About NY Bar Grievance Committee's Mistreatment of Attorney Steven Donziger

New York human rights attorney Steven Donziger has long warned that Chevron would engage in a politically-motivated attempt to try to strip him of his law license after it lost the landmark $12 billion Ecuador pollution case. Sadly that prediction may come true given efforts by the oil giant and U.S. judge Lewis A. Kaplan to block the decision of a neutral bar referee who ruled Donziger could present evidence challenging Chevron's fake "fraud" narrative.

Steven R. Donziger, lifelong human rights
attorney and advocate for Indigenous peoples
London-based Global Witness, a prominent human rights group, has issued a statement expressing concern about the deplorable treatment of Donziger by Chevron, Kaplan, and the bar authorities. Recently, a coalition of 20 prominent civil rights groups -- including the ACLU, Electronic Frontier Foundation, and Greenpeace -- named Chevron "Corporate Bully of the Year" for its vicious SLAPP-style litigation attacks targeting Donziger and his Ecuadorian clients.

The facts are disturbing.

U.S. Judge Kaplan, a former Chevron
investor, has been attacking Donziger
As background, Donziger (bio and website) is a Harvard Law graduate and classmate of President Obama with not a single client complaint in twenty-five years of law practice. His apparent "mistake" in Chevron's eyes is that for two decades he has been a driving force behind one of the most successful corporate accountability cases ever. The size of the judgment and the financing paradigm of "private capital in service of human rights" represents a major threat to Chevron and a fossil fuel industry which faces trillions of dollars in legacy pollution liabilities around the globe. That's why Chevron has used 60 law firms and 2,000 lawyers to deploy maximum overkill to fight Donziger and his clients; the company literally wants to kill off the very idea of the case.

Four layers of courts in Ecuador -- including the country's Constitutional Court in a unanimous decision last July -- have affirmed the judgment against Chevron based on 105 technical evidentiary reports and 64,000 chemical sampling results in addition to scores of witness testimony. Not even Chevron denies it caused massive, obscene and carcinogenic pollution as a cost-saving measure. The company does not deny that an explosion in cancer rates has taken place in areas where it operated hundreds of well sites from 1964 to 1992. Unable to defend on the evidence, Chevron made up its own facts and laundered them through Kaplan's court.

Chevron lawyers at the Gibson Dunn firm in New York -- led by Randy Mastro and Andrea Neuman -- orchestrated the highly suspect ruling by U.S. judge Kaplan in a civil "racketeering" trial that ended in 2014. Many critics, including prominent appellate lawyer Deepak Gupta, consider this ruling legally flawed and ethically compromised. After denying Donziger a jury and then exhibiting a pronounced pro-Chevron bias throughout the trial, Kaplan found Donziger committed "fraud" based almost entirely on testimony from an admittedly corrupt Ecuadorian witness paid two million dollars by Chevron in violation of federal law. The witness, Alberto Guerra, was coached a staggering 53 days by Chevron lawyers before testifying that Donziger approved a bribe of the trial judge. Guerra later admitted under oath that he repeatedly lied in Kaplan's court.
Gibson Dunn's Mastro has
made millions helping
Chevron target Donziger

New York grievance committee staff attorneys Naomi Goldstein and Jorge Dopico are charged with overseeing attorney discipline in Manhattan. Last year, based entirely on the Kaplan decision, the pair sought Donziger's interim suspension without a hearing after absurdly designating him "an immediate threat to the public order" based on his work holding Chevron accountable. They concocted this Kafkaesque designation after refusing even to interview Donziger or any of the numerous witnesses available who can challenge Kaplan's findings and expose Chevron's criminal misconduct. (For more on Chevron's intimidation model, see this excellent article by Greenpeace's Weyler.)

Consider these details of how the NY bar grievance lawyers have treated Donziger since Kaplan and his colleagues "referred" him for disciplinary action in late 2016, precisely at the time the enforcement action against Chevron in Canada was advancing in Canadian courts:

  • In February 2017, Donziger responded to his referral with a detailed letter in which he explained the absolute lack of basis to move against him. He offered to sit for an interview and otherwise fully cooperate. Goldstein and Dopico ignored the letter.
  • Several months later, Goldstein and Dopico went to court to petition for Donziger's designation as "an immediate threat to the public order" based on the disputed Kaplan findings that had issued four years earlier. Donziger was provided no prior notice.
  • Goldstein and Dopico targeted Donziger after he publicly challenged the evidence underlying the Kaplan RICO decision. Donziger called attention to the many due process problems with Kaplan's trial, including the suspicious and still secret million-dollar Chevron payments to a Special Master appointed by the judge who is a personal friend (see here). Donziger also published a detailed and powerful 33-page rebuttal exposing Chevron's fraud.
  • As Donziger and others voiced criticism of Kaplan, suddenly a bar referral letter to Dopico suggesting Donziger's immediate suspension was sent by several of the judge's colleagues on the federal bench. The letter was clearly misleading and injudicious. It failed to mention critical evidence undermining the credibility of Kaplan's decision, including the exorbitant Chevron witness payments. It ignored the fact four courts and 16 judges in Ecuador had rejected Kaplan's findings and that Canada's Supreme Court had ruled in favor of the Ecuadorians.
  • The court-appointed referee designated to oversee Donziger's bar hearing, John Horan, recently ruled (see here) that due process requires that the advocate be allowed to present evidence to challenge Kaplan's findings and Chevron's fake "fraud" narrative. Horan suggests Kaplan did not provide Donziger a "full and fair" hearing in the prior case. He scheduled a hearing for early December for Donziger to present evidence.
  • Rather than take part in a hearing before their own referee and respond to Donziger's evidence, Dopico and Goldstein rushed back to a New York appellate court to stay the hearing that would finally have allowed Donziger his day in court. They argued that Kaplan had already "decided" the fact issues back in 2014 and that Donziger should not be allowed to present any evidence other than testimony related to his character. 
  • A five-judge panel from a New York State appellate court could have ordered the hearing to proceed, but instead (in a one-paragraph order) appeared to robotically rubber-stamp the request to block the fact-based proceeding regarding Donziger's law license. The five judges on the panel were John H. Sweeny, Jr.; Dianne T. Renwick; Rosalyn H. Richter; Sallie Manzanet-Daniels; and Marcy L. Kahn. 
  • Obviously embarrassed to be doing Chevron's dirty work, Dopico and Goldstein have worked overtime to prevent public scrutiny of their trampling of Donziger's due process rights. The pair have repeatedly tried to block Donziger from opening any hearing (should one actually happen) to the public and to journalists, even though he has waived his right to confidentiality as a way to shine some light on the process.
The language in Horan's ruling suggests why Kaplan and the Chevron lawyers are on edge. Horan concluded that Kaplan "created a criminal indictment" but "in the guise of civil RICO proceedings" and then found facts without a jury by a "preponderance of the evidence" standard rather than a normal "beyond a reasonable doubt" standard. Horan added: "it is open to question... whether [Donziger] did receive a full and fair hearing before Judge Kaplan..." 

One of many toxic pits left by Chevron
in the Ecuadorian Amazon
Even though Chevron and Kaplan have tried their best to knock Donziger off the case, the strategy is not working. The success of the case has won Donziger and his Ecuadorian clients high praise from major environmental and Indigenous leaders the world over. Supporters include Phil Fontaine, the former National Chief of Canada; Rafael Pandam, the President of the Amazon Parliament of Ecuador; and Atossa Soltani, the founder of Amazon Watch. First Amendment Scholar Martin Garbus, Harvard Law Professor Charles Nesson, and Greenpeace co-founder Rex Weyler have all backed Donziger and gone after Chevron. Weyler accused the company of committing "ecological crimes" in Ecuador.

Prominent San Francisco-based trial lawyer John Keker (who represented Donziger) called the Kaplan proceeding a "Dickensian farce" designed to inflict harm on Donziger. Kaplan's problematic findings have been largely ignored in Canada, where the Supreme Court unanimously backed the enforcement action against Chevron. Sixteen judges in Ecuador have rejected his conclusions. But in New York, the Kaplan findings are being exalted by the bar authorities to try to deny Donziger a hearing where the truth can be revealed.

Further details of that truth are outlined in this stunning letter by Donziger to the U.S. Department of Justice. We might add that the Gibson Dunn firm to whom Chevron has paid hundreds of millions of dollars has a history of engaging in "legal thuggery" and the fabrication of evidence on behalf of its scandal-plagued wealthy clients. (See here.) The High Court of London recently disbarred one lawyer at the firm for trying to frame an enemy of one his clients, the President of the African nation of Djibouti. No offense to the many fine lawyers at Gibson Dunn, but this willingness to cross the ethical line is part of the "service" some in the firm's litigation department sell to wealthy corporations enmeshed in scandal.

Also relevant is the long history in the United States of politically-motivated bar discipline targeting lawyers who challenge entrenched interests, as documented in this article. The New York judiciary's disrespect for Donziger appears to fit well within this tradition. The human rights NGO Global Witness likened Donziger's mistreatment to what the group usually sees in repressive regimes like North Korea, Saudi Arabia, and Turkey (see here). "It is shocking to note the similarities ... between this case, and cases we have observed in a myriad of Banana Republics around the world, where official harassment of anyone who threatens the powerful is the norm," the group wrote.

Donziger is not a threat to the public order. He is a threat to Chevron's environmental crimes and Judge Kaplan's credibility as an unbiased arbiter of the facts. Attorney Donziger's license must be restored and he should be allowed to challenge Kaplan's findings in a public setting. Anything less will be a huge stain on the reputation of the New York judiciary.