Comments on: Lago Agrio: Donziger Disbarred

By: The Never-Ending Story: Donziger Seeks To Avoid Disbarment In DC - Folkman LLC

The Never-Ending Story: Donziger Seeks To Avoid Disbarment In DC - Folkman LLC — Mon, 09 May 2022 10:01:05 +0000

[…] new front has opened in Steven Donziger’s battle to remain a lawyer. As you’ll recall, Donziger was disbarred in New York after the New York courts decided that the findings of fact the federal court made against him in […]

By: Ted Folkman

Ted Folkman — Mon, 17 Aug 2020 12:57:59 +0000

In reply to Salem. You can be sad for someone even if you think the punishment is right. Or at least I hope you can.

By: Salem

Salem — Mon, 17 Aug 2020 08:59:44 +0000

“Any disbarment is a sad occasion”

Is it? Or can it be a happy occasion when the public, and other litigators, are protected from fraud, malfeasance, etc? By the same token, is any imprisonment a sad occasion? Is it a matter of regret that, say, Dzhokhar Tsarnaev is imprisoned? For myself, I’m sad that Mr. Tsarnaev chose to do those terrible things, but him having chosen so to do, I’m not at all sad about him being imprisoned. And I’d be stunned if someone commenting on his trial went with that line.

We all recognise this about ordinary misconduct. I worry that class interest and fellow-feeling draws us to a kind of closed solidarity with lawyers that we would recognise as wrong in other circumstances. And that misguided sympathy is reflected in the disciplinary bodies, which are, as a rule, far too lenient even with lawyers who have committed very serious misconduct. I have no wish to “dance on his grave,” but if Mr. Donziger has done half of what he’s accused of, losing his law license is a mild punishment indeed.

I would rather say that lawyerly misconduct so egregious that it could lead to disbarment is sad.

By: Ted Folkman

Ted Folkman — Sun, 16 Aug 2020 14:34:07 +0000

In reply to Philipp Foelsing. Dear Philipp, thank you for the interesting comment! I can imagine a rule like the rule that applies in Germany. We already have such a rule insofar as no findings of fact in a civil case can have preclusive effect in a criminal case. But I think that is because preclusion in that context would interfere with the defendant’s right to trial by jury and because the burden of proof is higher in a criminal case is higher than in a civil case. I believe that in New York the standard of proof in lawyer discipline cases in the same as in civil cases, and there are no issues about the right to a jury here. So I think the decision was correct given the law as it is. I could also imagine a system that imposed a higher burden of proof in disbarment proceedings, but I think our approach is not based on the rights of the lawyer but on protection of the public.

By: Philipp Foelsing

Philipp Foelsing — Sat, 15 Aug 2020 08:26:16 +0000

Dear Mr. Folkman, thankyou for keeping your readers updated. In Germany, only a criminal judgment against the lawyer is binding for the disciplinary court, neither the decision of a civil court nor administrative findings. Only the criminal court’s finding of fact would be binding, but not the criminal court’s legal assessment. Therefore the disciplinary court has to legally assess the facts by itself. Even then the disciplinary judges remain competent to make their own finding of fact if they are positively convinced that the criminal judge erred. I believe that this flexible approach is fairer than the appellate division’s strict concept of collateral estoppel, as the disbarment of a lawyer concerns highly sensitive constitutional questions. But what do you think?

All the best from Hamburg

Yours Philipp