The latest twist in the saga of Steven Donziger is a major win for the embattled lawyer for the Lago Agrio plaintiffs. A referee has recommended that he be reinstated to the practice of law. I had previously written that I didn’t want to write about the case anymore because I find it too depressing. Well, this new development is important enough that I am going to write about it, but writing about it and explaining my view requires me to explain just why I am depressed by the way the case turned out.
The key to my basic approach is in a post from 2018 called “Facts are Created.” The idea is that there are facts that are true about the world, and there are facts that have been finally determined in a judicial proceeding. The two aren’t always the same. Sometimes wrongful convictions happen, for example. Sometimes a jury or a judge gets the facts wrong. But once the court has found the facts, or as I called them in the prior post, the facts′, they are conclusive in their legal effect, at least as to the parties themselves. Is this just some kind of blind, mechanical formalism? No. It is rooted in real principle and a moral view of what the law is. The courts exist to decide disputes. If they can’t decide disputes because their decisions can never really be final, then they cannot deliver justice. Of course there have to be tools for correcting errors. There were tools in this case, namely, appeals and collateral attacks on the judgment. But Donziger didn’t use the first tool, and he has never tried to use the second.
As longtime readers know, Judge Kaplan found that Donziger had bribed Judge Guerra, and wrongfully ghostwritten the Cabrera expert report, etc. Those are the facts′. I have criticized some of Judge Kaplan’s findings, particularly the finding of bribery. But Judge Kaplan found what he found. Donziger and his appellate lawyer, Deepak Gupta, who is a terrific lawyer, both have said many times, including in Donziger’s bar disciplinary proceeding, that Judge Kaplan’s findings are and have always been disputed. That could be true in way. Donziger can say, “I think the judge got it wrong.” But with due respect to Donziger and Gupta and others who have taken this position, it is clearly wrong in the sense that matters. Donziger, no doubt for sound reasons, did not appeal from the findings of fact. Nor has he ever brought a motion to set aside the judgment. The facts′ are what they are. The New York courts have also taken this view by instructing the referee that he must give preclusive effect to Judge Kaplan’s findings of fact.
With this basic view, disbarment seems right to me. The facts′ are what they are, and they seem to support a serious sanction. I could make similar comments about the pending contempt charges against Donziger. There is little question that he guilty of at least some willful contempt of the court’s orders—he has said as much. But Chevron’s continued pursuit of him on the civil judgments against him, when it seems obvious he lacks the ability to pay, and the extended pretrial home detention of him on the criminal contempt charge when there does not seem to me to be a realistic risk of flight, seem to me to be over the top. Chevron’s aim seems to me to be more about sending a message than anything else at this point. The reason why I stopped writing about it is that I think Chevron is pushing too hard and I think that Chevron is in the legal right, the facts′ being what they are.
Anyway, let’s turn to the referee’s decision. The referee acknowledged that he had to accept Judge Kaplan’s version of the facts′. But he took the supposed dispute about those findings as a matter in mitigation, as well as the Ecuadoran appellate court’s rejection of the claims of fraud. To me this seems inconsistent with the requirement to give Judge Kaplan’s conclusions preclusive effect. And this leads to another reason I am depressed about how the case has turned out. The implication of my view is that Donziger deserves punishment (maybe I should write deserves′), and I don’t relish the thought.