Forbes 11/05/2022
Steven Donziger, the disgraced and criminally convicted former attorney who corruptly sued Chevron over pollution in Ecuador, is fighting to keep his law license in Washington, D.C., after being disbarred in New York. I have exhaustively discussed this sad saga, so please consult my earlier columns as needed.
In April 2022, attorneys with the D.C. Bar directed Donziger to state why he should not also be blocked from practicing law in D.C. following his 2020 New York disbarment. [Reciprocity of sanctions is the norm for bar discipline in the United States.] In a brief filed on May 5, Donziger’s attorneys argued that “significant violations of due process rights” in the New York disbarment “make it an inappropriate basis from which to impose reciprocal discipline.”
Donziger’s brief repeatedly asserts that former Ecuadorian judge Alberto Guerra, who testified in the RICO trial against Donziger, made numerous false statements in his testimony. But Donziger’s claim that Guerra admitted he lied in federal court is false and has been rejected repeatedly. Equally false is Donziger’s claim that Judge Kaplan’s opinion was based “primarily” on Guerra’s testimony. Judge Kaplan relied on an overwhelming mountain of evidence, as his 500-page opinion makes clear. Donziger did not even attempt to contest Judge Kaplan’s findings on appeal. Indeed, on appeal, a unanimous Second Circuit panel, in an opinion written by distinguished Carter appointee Judge Amalya Kearse, affirmed Judge Kaplan in full. The court noted that Donziger did not “challeng[e] the sufficiency of the evidence to support any of [Judge Kaplan’s] findings” and held that “[t]he record . . . reveals a parade of corrupt actions by [Donziger and his] team, including coercion, fraud, and bribery, culminating in the promise to [an Ecuadorian judge] of $500,000 from a judgment in favor of the plaintiffs.” Chevron Corp. v. Donziger, 833 F.3d 74, 81, 126 (2d Cir. 2016). The U.S. Supreme Court denied certiorari, rendering the judgment against Donziger final and unappealable.
There are many false statements in Donziger’s motion to avoid reciprocal discipline. Here are only three examples.
1. Donziger’s brief falsely suggests that he represented himself in the RICO trial (therefore his conviction should not be grounds for disbarment, as he had no legal counsel), but this is not true. As reflected in the court’s RICO judgment, Donziger was represented by a number of lawyers.
2. Donziger’s brief repeats the falsehood that the RICO judgment’s findings that he corrupted the Ecuadorian court proceedings and ghostwrote the Ecuadorian judgment are solely traceable to the testimony of former Ecuadorian judge Guerra. This is false, as reflected in the RICO judgment itself and in Judge Kaplan’s orders post-judgment.
From the RICO judgment itself:
• “Chevron exhaustively compared documents produced by defendants in discovery in this case and in the Section 1782 proceedings, on the one hand, with, on the other hand, the Lago Agrio court record—the record that [Donziger ally] Zambrano claimed was the sole source of evidence used in writing the Judgment. That comparison establishes that portions of eight documents produced by defendants in discovery—internal work product—appear in haec verba or in substance in the Judgment that Zambrano claims to have written himself. These documents appear nowhere in the Lago Agrio court record.” Chevron Corp. v.Donziger, 974 F. Supp. 2d 362, 492 (S.D.N.Y. 2014). This evidence—and Donziger’sfailure to offer any plausible alternative explanation— is discussed in detail at pages 493-504.
• “Having concluded based entirely on direct and uncontroverted evidence that the LAPs wrote the Judgment, the Court credits Guerra’s explanation that they got Zambrano to sign it by bribing him. Although Guerra’s credibility is not impeccable, that portion of his account was corroborated extensively by independent evidence. Donziger and Zambrano provided no credible evidence to support their versions of what transpired.” Chevron Corp. v. Donziger, 974 F. Supp. 2d 362, 483 (S.D.N.Y. 2014) (emphasis added).
• “In sum, the Court declines to credit Zambrano’s and Donziger’s testimony with respect to the bribe scheme. As to Guerra, the Court has examined his credibility carefully, considered his past dishonesty, and examined the inconsistencies in his testimony. Guerra on many occasions has acted deceitfully and broken the law. Some details of his story of what transpired in the Lago Agrio case have changed. But that does not necessarily mean that it should be disregarded wholesale. The Court next considers the circumstantial evidence relevant to the bribe scheme, and the defendants’ evidence at trial. It concludes that this evidence leads to one conclusion: Guerra told the truth regarding the bribe and the essential fact as to who wrote the Judgment. The Court is convinced that the LAPs bribed Zambrano and wrote the Judgment in their favor.” (p. 526) (emphasis added).2
• In addition to the foregoing, there is additional circumstantial evidence independent of Guerra’s testimony, which the Court went through in some detail. See, e.g., pp. 526-531. Among other things, “[N]either Donziger nor the LAP team reported Guerra’s bribe solicitation to authorities. [FN] Indeed, the LAPs considered hiring Guerra as an expert witness on the fairness of the Ecuadorian judicial system for use in the United States long after Guerra had solicited a bribe from them to fix the Lago Agrio case.”
From Judge Kaplan’s orders post-judgment (2018), in which he addressed the belated claim by Donziger that Guerra’s testimony was essential to the case against him:
• “The Court found that Donziger and his co-conspirators, among other misdeeds, (1) blackmailed Judge Yanez to abandon judicial inspections and to appoint Cabrera as the global expert, (2) corrupted Cabrera, (3) wrote Cabrera’s report, (4) falsely passed off Cabrera’s report as the work of an independent and impartial expert, and (5) ghost-wrote former Judge Zambrano’s purported decision which demonstrably relied on the fraudulent Cabrera report notwithstanding its disclaimer. The first four of those findings were made entirely without regard to Guerra’s testimony. And Guerra’s testimony was not essential to the fifth. Moreover, the Court held that this fraudulent behavior warranted equitable relief with respect to the Ecuadorian judgment. It did so without necessary regard to whether Donziger and the LAPs bribed former Judge Zambrano, the only point on which Guerra's testimony was critical.” Chevron Corp. v. Donziger, No. 1 CIV. 0691 (LAK), 2018 WL 1137119, at *5 (S.D.N.Y. Mar. 1, 2018), aff'd, 990 F.3d 191 (2d Cir. 2021)
3. The brief attacks the conclusive effect of the RICO judgment and New York disbarment order by falsely stating several times that the RICO findings were issued under a “preponderance of the evidence” standard. This assertion is belied by language in the RICO judgment, which expressly held that many key findings were made under a “clear and convincing” standard:
• “This Court has found by clear and convincing evidence that Zambrano was corrupted by Donziger and the LAPs. Fajardo—with Donziger’s approval—agreed to pay Zambrano $500,000 out of proceeds of the Judgment in exchange for Zambrano deciding the Lago Agrio case in the LAPs’ favor and signing a decision provided by the LAPs.” [emphasis added]
• “The Court has found, also by clear and convincing evidence, that Fajardo and Donziger coerced Judge Yánez to allow the LAPs to terminate their remaining judicial inspections, to appoint a global expert, and to designate their hand-picked choice, Richard Cabrera, for that position.” [emphasis added]
• “The Court finds, by clear and convincing evidence, that at least some of these payments and benefits, actual and promised, were bribes given to influence Cabrera's actions as the court-appointed global expert.” [emphasis added]
Nine years ago, ethics expert Nancy J. Moore, Professor of Law at Boston University and Chief Reporter to the American Bar Association’s Commission on Evaluation of Professional Rules of Conduct, produced a report detailing Donziger’s ethical misfeasance to that date. I attach a link to the report here.
Let me conclude. Steven Donziger admits in his most recent petition to the DC Bar that reciprocal discipline (disbarment in this case) is the rule in “ordinary cases.” But he asserts that his case is not “ordinary.” Here, for once, he is correct. His case is far from “ordinary.” His case is one of extraordinary malfeasance and criminality, far more serious than that of typical disbarred lawyers, and richly deserving of the prison sentence he served and of the disbarment New York has imposed.
El artículo original puede ser visto aquí
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