Steven Donziger Is Disbarred

Forbes - Michael I. Krauss 13/08/2020

Foto: Annie Tritt, The Intercept

Today the infamous Steven Donziger was, in the words of New York’s Appellate Division, “disbarred, retroactive to the date of his July 10, 2018 suspension, and his name is stricken from the roll of attorneys and counselors-at-law in the State of New York.”

This column has exhaustively detailed the saga of Mr. Donziger’s misdeeds while representing indigenous Ecuadoreans suing Chevron Corp. Donziger obtained an $8.6 billion judgment against Chevron in Ecuador. Check out my site now for all the twists and turns of this case, one of the most ethically egregious cases this author has ever followed. When you’re up to speed, come on back for this, hopefully final, chapter ....

Back? OK, as you now know, in July 2018, pursuant to New York’s doctrine of collateral estoppel (wherein factual matters between the same parties decided by a competent federal court are binding on the New York state court), New York’s Appellate Division (in Matter of Donziger, 163 AD3d 123 [1st Dept 2018]) found Mr. Donziger guilty of professional misconduct and provisionally suspended him from the practice of law, all the while sending the matter to a referee for a final sanction hearing based upon his actions in Chevron Corp v Donziger (974 F Supp 2d 362 [SD NY 2014], affd 833 F3d 74 [2d Cir 2016], cert denied __ US __, 137 S Ct 2268 [2017]). In those two cases, the federal District Court and the Second Circuit Court of Appeals described in great detail Donziger’s corruption of a court expert and ghostwriting of the expert's report. Donziger was also found to have engaged in obstruction of justice, witness tampering, judicial coercion and bribery in obtaining his $8.6 billion judgment.

Notwithstanding the Appellate Division's prior order directing the referee that, in his determination of the appropriate sanction to recommend, collateral estoppel attached to United States District Judge Kaplan's factual findings against Donziger, the Referee issued a ruling that Donziger could challenge those findings at the sanction hearings. The state Attorney Grievance Committee (AGC) immediately filed a motion challenging the Referee's ruling, and on January 17, 2019 the Appelalte division again ordered "that the Referee may not reexamine this Court's determination, based on the doctrine of collateral estoppel, that respondent committed professional misconduct.” But the referee continued to allow Donziger to dispute Judge Kaplan’s findings, and on February 24, 2020 the Referee recommended that the Appellate Division end respondent's interim suspension.

Today the New York appellate court rejected the recommendation of the insubordinate referee. In the words of the court, the “[r]eferee was too dismissive of the severity of the misconduct at issue” and “arguably exceeded his authority in permitting respondent to continually offer protestations of innocence notwithstanding this Court's prior orders.” The court continued, “[n]ot only did the Referee understate the magnitude of respondent's egregious misdeeds, he also failed to recognize (nor even discuss) the relevant precedent[s] in which the sanction of disbarment has been imposed for comparable misconduct (see e.g. Matter of Zappin, 160 AD3d 1 [1st Dept 2018], appealdismissed, 32 NY3d 946 [2018], lv denied 32 NY3d 915 [2019]; Matter of Fagan, 58 AD3d 260 [1st Dept 2008], lv dismissed 12 AD3d 813 [2009].” Last but not least, the referee utterly failed to mention evidence produced by the AGC in aggravation of Donziger’s sanction, particularly Judge Kaplan's detailed civil contempt findings [see Matter of Savitt, 170 AD3d 24, 28 [1st Dept 2019], appeal dismissed 33 NY3d 1118 [2019] [Referee erroneously failed to recognize a civil contempt finding as aggravation]. The Appellate Division noted that this aggravation further justified permanent disbarment.

In New York it is the Appellate Division, not the state’s highest court (the New York Court of Appeals) that is tasked with responsibility for attorney discipline. The high court could theoretically grant Donziger’s request for permission to appeal to it. But I am informed by Massapequa, NY attorney Ira Levine that “[i]t’s a rare disciplinary case that gets to the Court of Appeals. ... [I]f you read the Appellate Division’s decision, it was ... per curiam (grievance proceedings usually are), and to the point. ...[T]he decision appears to discuss routine issues of law and the discretion of the App. Div. to mete out discipline, and does not involve a weighty constitutional, statutory or public policy issue that is likely to occur in the future.” All this makes it unlikely that permission to appeal will be granted by the Court of Appeals. If the saga ends here, then in my opinion the Rule of Law in the Empire State will be enhanced.