The DC Court of Appeals has disbarred Steven Donziger. Donziger may seek review in the Supreme Court, but assuming that he’s unsuccessful—a good bet—the new decision is the end of the line for his attempt to preserve his right to practice law in the United States.
The decision was as I predicted in my last post on the matter. The court rejected Donziger’s best argument, which was that disbarment would be a “grave injustice” in the circumstances of his case. The broad “grave injustice” standard could give a court inclined in Donziger’s favor latitude to reach a decision other than the obvious one. But as the court held, the “grave injustice” standard does not exist to give lawyers admitted in DC the right to abstract vindication. It exists to protect lawyers who have or who may practice law in Washington from the unfair consequences of sister-state disciplinary decisions. Donziger has not and apparently does not plan to practice law there.
With “grave injustice” out of the way, the other arguments were straightforward. Donziger was accorded due process, because he had notice of the proceedings and participated in them fully throughout. Disagreement with a court’s conclusion that it was required to give preclusive effect to earlier findings of fact is not a denial of due process. If there is one thing Steven Donziger has received from the United States courts and the courts of New York and the District of Columbia, it is due process. The court pointed to precedent holding that a state bar’s reliance on collateral estoppel as grounds for discipline is not a basis for refusing to apply reciprocal discipline.
The outcome of Donziger’s disbarment case is a straightforward but ironic demonstration of the point Donziger made to some of his team members during the Ecuadoran case, which was caught on film. “Facts don’t exist,” he said, “facts are created.” I don’t think Donziger was trying to make a point about the metaphysics of facts (“there are no facts in the world except facts that people create”). I think he was saying that it’s the lawyer’s job to give a court a good reason to agree that the facts are what the lawyer says they are and not what his opponent says they are. That way of looking at things focuses on the lawyer’s work. Facts are created. But what Donziger has not yet really acknowledged is that facts are created. With that emphasis, the focus is on the court’s work. When a court determines the facts in a lawsuit, it isn’t just telling a story. It’s determining the story that thereafter will be treated as authoritatively true for purposes of the law. So of course once the court found that Donziger had engaged in serious misconduct in the Ecuadoran case, it was more or less a foregone conclusion that he would face serious professional discipline. I assume Donziger would agree that someone who really had done the things he was found to have done should not be practicing law. But for legal purposes, he is someone who really has done those things.