Yesterday Chevron settled its claims against Patton Boggs. This was probably inevitable after the dismissal of Patton Boggs’s claims against Chevron. Patton Boggs is trying to consummate a merger with Squire Sanders, and it’s hard to imagine anyone agreeing to the merger while Chevron’s claim was unresolved.
So no one should be surprised by the settlement or by the fact that money is going to change hands, to the tune of $15 million. But everything else about the settlement is remarkable. Patton Boggs has done what all of the others who have settled have done: it has turned on Donziger and the LAPs. It has agreed to provide discovery to Chevron and agreed not to aid anyone in any effort to enforce the Lago Agrio judgment. And it has issued a highly unusual statement of regret:
Today’s resolution of our firm’s disputes with Chevron ends our involvement in the Lago Agrio matter. The recent opinion of the United States District Court for the Southern District of New York in the Chevron v. Donziger case includes a number of factual findings about matters which would have materially affected our firm’s decision to become involved and stay involved as counsel here. Based on the Court’s findings, Patton Boggs regrets its involvement in this matter.
I would love to see the file memo on the legal ethics aspects of all this! It’s one thing for an environmental consultant to turn on its client and quite another for a lawyer. I’m particularly interested in how much discovery Patton Boggs will ethically be able to give Chevron in light of the rule on disclosures of information regarding former clients. Donizger has said that he may seek an injunction to prevent Patton Boggs from turning over material to Chevron.
I have two basic reactions to this latest defection. The first is admiration for what Gibson Dunn has achieved. Wow! I never thought I would see a major law firm turn on its former clients in this way. I understand just how gobsmacked Donziger and the LAPs must feel by their former lawyers’ betrayal, and while as I note below I acknowledge the pressures on Patton Boggs, I think we need to take a hard look at the legal ethics of what the firm has agreed to do. The masterminds behind Chevron’s campaign to turn Donziger’s former allies against him have accomplished everything they set out to do, as far as I can tell.
My second reaction, though, points in another direction. Is there not something unseemly about forcing Patton Boggs, and maybe the other turncoats, to abase themselves in this way? I liken the situation to plea bargains in federal criminal cases. We all know that pressures prosecutors are able to bring to bear due to factors such as mandatory minimum sentences lead some number of people who are actually innocent to plead guilty to crimes, but when you plead guilty you have to admit the facts that constitute the crime and you have to assert that your plea is voluntary, even if you’re not guilty in fact and even if your plea isn’t voluntary except in the most formal sense of the word. The commercial and litigation pressures Chevron has been able to bring to bear have been immense, and they have borne fruit. If you complain about the injustice of this to a prosecutor, he or she will reject the premise of the complaint: “the defendant pleaded guilty voluntarily because he is guilty, period.” Chevron can do likewise. But still, it leaves a bad taste in my mouth. Alison Frankel expressed a similar thought in her reaction to the settlement: “Chevron,” she writes, “is a litigation bully. Its weapons are time, money and intimidation.” I would put it a little differently. Chevron’s victories are like the United States’s victory after dropping the atomic bombs. After the street parties and the champagne, we have to ask: is this way of waging war a good thing for the world? Because if there’s one thing I think we can say with confidence, it’s that many other firms and litigants are going to look to Gibson Dunn’s achievements as a model of how to turn lemons into lemonade.
Photo credit: Marie-Lan Nguyen