It’s no secret that oil companies like Chevron play hard ball; just a few years ago, Chevron paid $30 million to settle allegations that it had bribed Saddam Hussein’s regime in Iraq to participate in the UN’s oil-for-food program.
As most readers know, down in Ecuador Chevron is defending a civil case over alleged contamination of dozens of villages in the Lago Agrio; it’s no surprise there has been "a fierce lobbying effort by Chevron in Washington to strip Ecuador of American trade preferences" because the Ecuadorian President has expressed support for the Lago Agrio villagers.
Chevron similarly launched a sting operation to try to catch the President’s sister bribing the judge presiding over the case, and declared, once the operation was finished, “We think this information absolutely disqualifies the judge and nullifies anything that he has ever done in this case.”
One tiny problem with the sting operation, in the words of the New York Times: "The recordings do not indicate whether Ms. Correa was aware of the efforts to include her in a bribery scheme. Nor is there confirmation that Mr. García was in fact in contact with her."
In other words, Chevron found nothing on the judge and nothing on the President, but they launched a public relations offensive on it anyway.
Keep that in mind while you consider the latest news:
In a strongly worded opinion released Friday, federal district judge Lewis Kaplan in Manhattan elaborated on his reasons for allowing Chevron Corporation to depose Steven Donziger, the U.S. plaintiffs attorney in the massive environmental tort litigation against Chevron in Ecuador. Earlier this fall, Chevron had moved to depose Donziger, claiming that the trial in Ecuador had been tainted by fraud by the plaintiffs; in an October 20 order, Kaplan allowed additional discovery from Donziger.
In Friday’s opinion, Kaplan concluded that "the need is extremely great" to depose Donziger. He based his decision on outtakes from a documentary on the litigation, Crude–footage that Chevron had subpoenaed and submitted in support of its fraud allegations.
Kaplan found "substantial reason to believe that [Richard] Cabrera, the supposedly neutral expert [appointed by the Ecuadorian court in Lago Agrio], worked in collusion with the plaintiffs." Breaking it down further, he points to "substantial evidence that (1) Cabrera was appointed as a result of Lago Agrio plaintiffs’ ex parte contacts with and pressure on the Ecuadorian courts, (2) at least part of his report was written by consultants retained by the Lago Agrio plaintiffs, and (3) the report was passed off as Cabrera’s independent work."
There was more bad news for Donziger. Chevron had been joined in its discovery motion by two lawyers who worked for Chevron’s predecessor Texaco. They are currently being prosecuted by Ecuador, along with seven government attorneys, for signing off on Texaco’s cleanup of oil sites when it left the country. The criminal case against them in Ecuador, Kaplan wrote, "appears to have been instigated by Donziger and others working with him for the base purposes of coercing Chevron to settle and undermining a significant element of its defense in Ecuador."
In Kaplan’s view, these and other episodes raise "substantial questions as to [Donziger’s] possible criminal liability and amenability to professional discipline."
As I wrote before (Chevron Allowed To Depose Plaintiff’s Counsel In Ecuador Toxic Tort Litigation), I agree with Judge Kaplan’s order permitting Donziger to be deposed.
But let’s not get ahead of ourselves here. Corporate Counsel posted the outtakes identified as the worst-of-the-worst. Judge Kaplan singled out three episodes (the language below is from Kaplan’s order and the quotes are Donziger on the tapes):
“The only language that I believe this judge is going to understand is one of pressure, intimidation and humiliation. And that’s what we’re doing today. We’re going to let him know what time it is. . . . As a lawyer, I never do this. You don’t have to do this in the United States. It’s dirty. . . . It’s necessary. I’m not letting them get away with this stuff.”
Donziger told those present that the Lago Agrio plaintiffs needed to “do more politically, to control the court, to pressure the court” because Ecuadorian courts “make decisions based on who they fear most, not based on what the laws should dictate.” Donziger expressed concern that no one feared the plaintiffs, and he stated that the plaintiffs would not win unless the courts begin to fear them. Donziger described also his desire to take over the court with a massive protest as a way to send a message to the court of “don’t f— with us anymore – not now, and not – not later, and never.” He then proposed raising “our own army” to which Yanza interjected “a specialized group . . . for immediate action.”
Finally, Donziger participated in a dinner conversation about what might happen to a judge who ruled against the Lago Agrio plaintiffs. One or more other participants in the conversation suggested that a judge would be “killed” for such a ruling. Donziger replied that the judge “might not be [killed], but he’ll think – he thinks he will be . . . which is just as good."
A common objection, too, has been claims that Donziger met ex parte with the judge and the independent expert, but as far as I can tell that’s permitted in the Ecuadorian system. I haven’t seen anyone argue otherwise.
Michael Goldhaber at The American Lawyer had the most reasonable analysis of the ethical implications of the case back in September:
But even if one discounts as a joke the use of the word "army," and takes as hyperbole the expression of satisfaction that the judge may fear being "killed," one is left with a straightforward account of how plaintiffs have hired protesters outside the courthouse, and plan to do so again. It’s hard to read the transcripts filed by Chevron without concluding that Donziger’s intent in doing so was to put political pressure on the court.
When we asked Chevron’s lawyers what would be their next steps, Andrea Neuman of Gibson, Dunn & Crutcher chose her words carefully. "We’re taking a careful look at Chevron’s rights, including its rights under RICO," she said, "and we’re very cognizant of the responsibility of all lawyers to refer appropriate matters to the bar disciplinary committee."
In Corporate Counsel sibling publication The American Lawyer‘s Bar Talk section in October, we’ll examine Chevron’s RICO option. For this column, we asked two scholars to help assess the legal ethics. Both spot a host of ethical issues, including Chevron’s allegations, based on the first set of transcripts, that plaintiffs undermined justice through systematic ex parte contacts with the court-appointed damages expert. (Plaintiffs have argued that ex parte contacts are culturally accepted in Ecuador, and that they broke no rules.)
"It’s clear Donziger is crass, profane, and irreverent," said Nora Freeman Engstrom, a Stanford Law School expert on plaintiffs’ lawyer ethics. "Far less clear is whether he’s engaging in serious professional or criminal wrongdoing, although it’s possible." She added: "Our system does not require as precondition of advocacy absolute trust in one’s tribunal."
Catherine Rogers of The Dickinson School of Law at Penn State University, who studies global legal ethics, was more troubled by the transcripts. "If it turns out to be true they paid people to intimidate the court and make the judge fear for his life in a way that was designed to affect his judicial ruling, that’s nowhere close to the line of what is ethical," she said. "That’s thuggery, an interference with the administration of justice, and a gross violation of the ethical rules of every jurisdiction I am familiar with."
In her writings and lectures, Rogers has argued that U.S. ethical rules should generally be understood as applying to U.S. lawyers’ conduct in foreign tribunals and justice systems, and that the New York Lawyer’s Code of Professional Responsibility clearly does apply. Among the relevant rules in New York: Rule 3.5(a)(1) says that a lawyer shall not seek "to influence a judge, official or employee of a tribunal by means prohibited by law." New York Rule 8.4 says it’s misconduct to "engage in conduct that is prejudicial to the administration of justice." And Rule 3.3(f)(4) says a lawyer shall not "engage in conduct intended to disrupt the tribunal."
To be sure, those tapes of Donziger aren’t going to be played at CLEs any time soon as an example of model behavior. But do they show Donziger crossing the line from Engstrom’s view — i.e., being contemptuous of the tribunal isn’t necessarily criminal or unethical — over to Rogers’ view — i.e., threatening the presiding judge impairs the fairness of the court?
Donziger’s obviously a pugnacious lawyer prone to hyperbole, and there’s no doubt that he’s been more politically active than legally active in the case.
So what? Chevron launched a "fierce lobbying effort" to punish the whole country for the case and has never hesitated to impugn the integrity of the court in the press. There’s nothing unethical about any of that. Same goes with routinely complaining in private about the moral and ethical failings of the judge — something I’m sure Chevron’s lawyers do on a routine basis, since they’ve already done the same in public.
Donziger’s stray remark about "shutting down" the Court with a protest would certainly be a problem if he actually did it, but I haven’t seen any evidence of that, either — whereas we know for a fact that GOP operatives staged the "Brooks Brothers Riot" to interfere with the 2000 election recount, and we know all about Chevron’s bribes in Iraq, which resulted in nothing more than disgorging the wrongful profits and a modest fine. Assuming Donziger took the milder approach, hiring people to fake a genuine protest outside the courthouse sure is crass, but is it any worse than the "lawsuit abuse" propaganda campaigns funded by the U.S. Chamber of Commerce?
More to the point, is it actually illegal or unethical? I’ve never seen any Court in the U.S. find lawful political activism — like the staging of protests — to be illegal; likely since such a finding would almost certainly violate the First Amendment. It’s thus hard to see how paid-for political activism (so-called "astroturf"), crass as it might be, is unethical, and if it is, it’s hard to see how Chevron and the companies that make up the U.S. Chamber of Commerce aren’t just as guilty.
Or do we have one set of rules for those who advocate on behalf of the powerless and another for big corporations?