A 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 the Chevron RICO case had to be given preclusive effect. Donziger’s effort to have that decision reviewed by the Supreme Court came to nothing. It almost certainly would have failed no matter what, as it was pretty clearly not certworthy, but it was doomed to failure because it was filed way past the due date by Donziger’s lawyer, Harvard Law School Professor Charles Nesson. In the United States, each jurisdiction regulates its own bar, and disbarment in New York does not necessarily mean disbarment everywhere. On the other hand, we have a system of reciprocal discipline so that when a lawyer is disciplined for unethical conduct in one jurisdiction, he will, in general, be subject to discipline in every other jurisdiction where he is admitted to practice without the need for a full hearing.
Donziger was admitted to practice in the District of Columbia, and according to the docket of the DC Court of Appeals, in September 2018, after Donziger was suspended from the practice of law in New York, the DC courts, as a routine matter of reciprocal discipline, suspended him from the practice of law in Washington. The court stayed the matter pending the resolution of the New York bar discipline case.
In March 2022, bar counsel notified the DC court that Donziger’s petition for certiorari had been denied, or in other words, that his New York disbarment was now final. Thus in April, the court issued an order to Donziger to show cause why he should not be disbarred.
Last week, Donziger announced that, again represented by Professor Nesson, he has responded to the order to show cause. His response argues that DC should not impose reciprocal discipline but should either dismiss the petition for discipline altogether or else provide for further proceedings.
The DC Bar’s rule on reciprocal discipline (Rule XI, § 11(c)) requires the imposition of discipline “unless the attorney demonstrates to the Court, by clear and convincing evidence, that:
- The procedure elsewhere was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; or
- There was such infirmity of proof establishing the misconduct as to give rise to the clear conviction that the Court could not, consistently with its duty, accept as final the conclusion on that subject; or
- The imposition of the same discipline by the Court would result in grave injustice; or
- The misconduct established warrants substantially different discipline in the District of Columbia; or
- The misconduct elsewhere does not constitute misconduct in the District of Columbia.
The rule further provides:
Unless there is a finding by the Court under (1), (2), or (5) of this subsection, a final determination by another disciplining court that an attorney has been guilty of professional misconduct shall conclusively establish the misconduct for the purpose of a reciprocal disciplinary proceeding in this Court.
Donziger’s argument is that the DC authorities should not impose reciprocal discipline on autopilot in his case, because the New York disbarment was based on giving preclusive effect to Judge Kaplan’s findings and because one of the important facts Judge Kaplan found was doubtful. (You can read my basic approach to this issue in one of my favorite Letters Blogatory posts, “Facts Are Created“). He claims he was denied an opportunity to be heard, that the DC court should not accept the NY court’s decision as the final word, and that imposition of discipline would be a grave injustice.
It should be clear from the text of the rule that Donziger will have a very tough row to hoe if he wants to persuade the DC authorities that he was not guilty of misconduct. Even if you don’t think that Judge Kaplan’s decision should be given preclusive effect, I’m not sure how you argue that his findings of fact shouldn’t be considered given that they were the basis for the New York courts’ action. And even if you think that everything Judge Kaplan found about Judge Guerra and the supposedly ghostwritten decision should simply be ignored, the ghostwritten judgment was only one of the factual predicates for the judge’s ultimate conclusion. It’s also hard to imagine the DC court saying Donziger lacked an opportunity to be heard. He was heard; he simply disagrees with the New York authorities about the role of preclusion in his case.
The most appealing avenue for Donziger, on the face of things, is the “grave injustice” prong of the rule, because on its face, the term “grave injustice” seems appealingly flexible. Donziger’s brief refers to “grave injustice” several times. But he faces a threshold problem, at least if, as I think, he has never really practiced in Washington or had clients there. When “an attorney has never practiced, has no clients, and no intent to practice in the future in the District of Columbia, assertions of “grave injustice” regarding the reciprocal discipline doctrine are largely meritless.” In re Lifshitz, 154 A.3d 599, 601 (D.C. 2017). In other words, the “grave injustice” exception isn’t meant to aid New York lawyers looking for vindication in the abstract; it’s meant to aid Washington lawyers whose DC practices have been impacted unjustly by discipline elsewhere.
Two final thoughts. First, competence. It looks from the docket as though Donziger’s lawyers failed to make sure that he filed the required affidavit when he was suspended from the practice of law in DC. The main purpose of the affidavit is to provide assurance that the suspended lawyer has complied with the terms of the suspension. I don’t know how seriously the DC court will take this failure, but it seems to me that if a lawyer is serious about showing that he is fit to practice law he shouldn’t blow off these requirements when fighting to get his law license back. Perhaps Donziger submitted the affidavit later, but if so, the docket doesn’t reflect it.
Second, it seems that neither the New York authorities nor the DC authorities have begun disciplinary proceedings against Donziger on account of his criminal conviction for contempt of court. Of course New York hasn’t done so, since Donziger has already been disbarred there. But it seems to me that Donziger’s ethical troubles are not over whatever the outcome of the reciprocal discipline case, because it seems to me that a lawyer who has flagrantly violated court orders and then been criminally convicted for the contempt has committed an independent ethical violation worthy of sanction.