It’s been a while since I’ve written about the Lago Agrio case. Not much is going at the moment. I was aware, via press releases, of a dispute about whether Judge Kaplan should order Steven Donziger to pay Chevron’s legal fees, but I hadn’t read any of the motion papers until I came across a tweet from Roger Parloff highlighting the fact that several SDNY judges had submitted a disciplinary complaint against Donziger.

The news comes from a letter on the attorney’s fee issue that Donziger submitted to Judge Kaplan. In the letter, Donziger asks to have the fee issue, and all other post-judgment issues, transferred to another court. Here’s why:

Another critical issue is the conflict of interest that arose when certain SDNY judges tried to engineer disciplinary action against me by way of an advocacy-oriented and in my view powerfully misleading referral letter to the Attorney Grievance Committee of the First Judicial Department. The letter entreats the First Department to impose a penalty against me based on a controversial theory of collateral estoppel in a protean matter that continues to engage the courts of various countries. The letter entirely fails to mention the raft of open and problematic issues surrounding the district court’s RICO decision—such as the use of paid “fact” testimony and the new evidence cited above that suggests Chevron committed fraud—that obviously would give disciplinary counsel pause prior to initiating action and that will be taken up by enforcement courts to the extent they need to examine Your Honor’s decision. Signed by Judge Castel (and endorsed by the five other judges on the SDNY Grievance Committee), this referral letter puts me in a patently unfair situation: the same court to which I must now seek a hearing on the numerous outstanding issues related to the motion for fees already has numerous judges who sua sponte made a determination that I should be disbarred without even understanding, much less reviewing, the full evidence. In my view, this creates a flagrant conflict of interest. More to the point with regard to Chevron’s application for costs, all of the judges on the SDNY Grievance committee who voted to seek disciplinary action against me are connected to the supervision of the office of the Clerk of the Court.

A few points of interest jump out if we parse what Donziger has written carefully.

  • The judges acted sua sponte, rather than on a complaint by Chevron.
  • The discipline they are seeking is disbarment, the ultimate sanction, rather than some lesser punishment.
  • It is unclear whether the SDNY itself has imposed discipline on Donziger.

I had two reactions to this news. First, I think Donziger has a good point about waiting for the dust to settle before taking disciplinary action. It’s true that Judge Kaplan’s findings of fact can have preclusive effect. But if courts or tribunals elsewhere (in Canada, or in the Chevron/Ecuador arbitration) should come to significantly different conclusions, presumably the bar disciplinary folks would want to know that before acting.

Second, I was somewhat surprised to read that judges of the SDNY Grievance Committee (it’s not 100% clear that they were acting in that capacity) has asked the New York state bar to act. I’m not personally familiar with New York attorney disciplinary procedure, happily. But as I read the applicable rule (Local Rule 1.5(c)(1)), it seems to me that the Grievance Committee’s power to discipline extends only to disbarment from the bar of the SDNY, not disbarment from the New York state bar. To be sure, when a court imposes discipline, it will notify other relevant bars as a routine matter so that they can impose reciprocal discipline. Perhaps the letter to the New York authorities was this kind of routine communication. But that’s not how Donziger presents it in his letter, and in fact, it’s not clear that the SDNY has itself imposed any discipline. I would have thought that the first question for the Committee would be whether to discipline Donziger, and if it did, then the Committee or the Clerk would notify the New York state authorities.

I will keep you posted on this, and I invite anyone in the know to send me additional details by email.