First Time Ecuadorians’ Lawyers Allowed to Argue Oil Contamination Case Against Chevron in a New York “Courtroom”
For the first time since Chevron falsely accused indigenous Ecuadorians and their lawyers of bribery and fraud in a New York federal court, a NY lawyer, who judges the integrity of NYC lawyers, allowed the Ecuadorians’ lawyers to explain why one of them is not guilty of bribery and “ghostwriting” a $9 billion judgment against the US oil giant for contamination in an Amazon rainforest.
John R. Horan, the Presiding Justice on the First Department Discipline Committee allowed the lawyers to explain, in part, but it was a hell of a lot more than US District Judge Lewis Kaplan allowed in 2014.
Kaplan proudly ruled against the Ecuadorians to stop them from getting any money from Chevron to clean up a polluted mess that included 1,000 huge oil pits full of toxic gunk seeping into rivers, streams and soil since the 1970s.
Texaco committed the environmental crime but Chevron bought Texaco and, as a result, got all its profits and deadly gunk. The Ecuadorians got sick and thousands of them have died or suffered from illnesses caused by the contamination. Their living conditions are horrific, and their water and soil polluted and have been for decades.
John R. Horan is the Presiding Justice on the First Department Discipline Committee. He hears and reports to the First Judicial Department on cases of lawyer misconduct. He cannot judge whether Kaplan ruled properly or improperly on the bribery and fraud case Chevron brought in 2011, the same year an Ecuador court ruled against the company.
He can, though, decide whether Steven Donziger, the NY lawyer who has represented the Ecuadorians since they started their case in 1993, should remain suspended and disbarred from being a lawyer.
The contamination evidence presented to Horan was clear. The process for suspending and disbarring a lawyer was not so clear.
Last week, I attended a post-suspension hearing at the Attorney Grievance Committee office on 61 Broadway. I got there early to ensure I had one of about 25 seats. They filled up fast with Donziger supporters.
Horan had a hard time explaining or I had a hard time understanding why the post-suspension hearing wasn’t a pre-suspension hearing. A legal statute requires a pre, not just a post. If someone is going to accuse a lawyer of misconduct, then the lawyer should be allowed to argue the good or the bad or the ugly about what happened. In other words, a hearing could be used to attempt to clear the lawyer’s name.
But the Grievance Committee didn’t grant Donziger the right to try and clear his name. I’m not sure why it didn’t, but the Senior Judge of the Southern District Court is Kaplan, and he filed the complaint against Donziger in the first place.
Horan told us that.
Basically, a lawyer can get suspended if “uncontroverted evidence of professional misconduct …. is immediately threatening to the public interest.”
Even more confusing.
The Ecuadorians’ lawyers gave Kaplan plenty of controverted evidence during the bribery/fraud trial. He struck most of it. And, what “public interest” has been “immediately” threatened in the context of this 26-year-old case?
During the 2011 trial, Kaplan actually worried Chevron might have to close a few gas stations in the US if the Ecuadorians got the money to clean up. I’m not making a joke.
He never allowed the Ecuadorians’ lawyers to submit contamination evidence against Chevron into the record. They tried. Kaplan said, “We are not trying the Ecuadorian pollution case.”
But the contamination evidence helped to prove no bribery or fraud occurred. Yet Kaplan wrote in his ruling that the Ecuadorians and Donziger did not “controvert” Chevron’s charges.
Controvert is another way of saying, “hell, no, the charges are not true.” Everyone speaking on behalf of protecting the Ecuadorians and their rainforest DID MOST CERTAINLY controvert the charges in Kaplan’s court. It was in any brief I read, and I read them all.
Also, Kaplan’s grievance complaint against Donziger was filed two years after his 2014 ruling. So for four and a half years, there hasn’t been a hearing on the complaint. How immediate was Donziger’s threat to public interest? What was the public interest exactly?
Plus, the trial was conducted in Ecuador. Since Donziger couldn’t practice law in Ecuador, I’m not sure how the public interest in the US was or would be threatened.
Judge Kaplan said the Ecuadorians’ lawsuit against Chevron was nothing but a “game … dreamed up” by Donziger but he did not become a lead US attorney until 2004, 11 years after the case was first filed. Since 2004, Chevron, with help from the New York City office of Hill & Knowlton, demonized Donziger because he became pivotal in helping the Ecuadorians win their case. Chevron, with Kaplan’s help, is now going after every penny Donziger has as well as suspending/disbarring him from a law practice.
Here is what the Ecuadorians’ lawyers said about Donziger and the case when I was present at the first day of a four-day hearing:
The lawyers included Donziger’s attorney, a well-respected lawyer from Seattle, Richard Friedman and US human rights attorney Aaron Page, Ecuadorian attorney Patricio Salazar and Canadian attorney John Phillips, who all work with Donziger on the oil case. The witnesses also included a well-known computer forensic, J. Christopher Racich.
Friedman: Chevron paid its only witness to the bribery and fraud at least $2 million to testify against the Ecuadorians and their lawyers. But the witness was an Ecuador judge indicted on corruption charges and thrown off the bench for fraud, completely unrelated to the oil case. The witness, Alberto Guerra, later admitted he lied about his high-priced testimony in a related case. After losing his judgeship in Ecuador, he needed money and openly negotiated with Chevron about how much the oil giant would pay him for his perjured testimony. See here and here for additional background.
Another Friedman point: The Ecuador court required Chevron and the Ecuadorians to recommend an expert to do its contamination inspection. Chevron never recommended an expert. The Ecuadorians did. Chevron told Kaplan the Ecuadorians paid the expert, but of course they did. ALL experts were paid by either the Ecuadorians or Chevron. The court didn’t pay for an expert.
Racich: The Ecuador judge ruling against Chevron had an old and a new computer he used to write the judgment. Racich and a Chevron forensic expert took a look at all the pings on the computers and found the judgment was written over several months and revealed hundreds and hundreds of save-and-edit hits on the computers. Evidence showed that no one slipped a USB drive with the judgment onto the computers.
Page: Meeting with the Ecuador judge ex parte was allowed in Ecuador courts. It was very common. Chevron met with the judge alone regularly. The Ecuadorian lawyers did, too. Chevron accused the Ecuadorians of doing something that the company’s lawyers did, too.
Chevron also said the Ecuadorians wanted to stop the inspections but Page said each inspection of an oil pit took at least a month and could cost $100,000 or more. At some point, the contamination inspections became extremely costly and took too much time. Chevron, though, wanted more inspections to slow down the decision and break the bank for the Ecuadorians.
Salazar: He echoed many of Page’s statements and said Donziger was not licensed to practice law in Ecuador. Ecuadorian lawyers litigated the case. Donziger only advised them.
Phillips: Phillips is part of a team of Canadian lawyers who are litigating against Chevron to seize its assets there to pay the damage award. Unlike Kaplan, Phillips thinks well of Donziger.
“What he has done has been a great service to the human rights community,” Phillips told Horan.
Horan occasionally cut the lawyers off, but he largely let them present evidence that Kaplan ignored and threw out of court.
“This is an unusual case,” said Horan, a former Assistant U.S. Attorney for the Southern District of New York. As a “referee” of the complaint, he can’t hear an appeal but he believes Donziger “should exercise his right to have a hearing.”
OK, so he is having a four-day post-suspension hearing when he should have had a pre-suspension hearing. Why didn’t he have a hearing before the suspension? No one has answered that question, as far as I can tell.
I could only go for one day but transcripts will be available soon from the other two days, and one more hearing day will take place in about a month or so.
Horan said he wanted to understand Donziger’s “state of mind” versus whether Donziger had done anything wrong or not. Under the “state of mind” theory, he allowed the witnesses to “controvert” the charges.
Horan also gave speaking room to the lawyer representing the Ecuadorians and Donziger in Kaplan’s court, Zoe Littlepage, and the lawyer doing the same at the appellate court level, Deepak Gupta.
And, Robert Waters of Pink Floyd and Rex Wexler of Greenpeace were witnesses who spoke on Donziger’s behalf, too. Donziger answered questions the following day. Me and other supporters will be sending out the transcripts as soon as we get them.
All witnesses “controverted” wisely at a hearing on Donziger’s behalf. The four-day hearing may or may not result in a reversal of Donziger’s suspension.
At least the truth got told, finally.