Lago Agrio: Donziger Disbarred

Steven Donziger’s career as a lawyer has come to an end. A New York court yesterday disbarred him. This result will not surprise longtime Letters Blogatory readers. Although the referee who conducted the hearing was clearly sympathetic to Donziger, the law was clear: the facts that Judge Kaplan found had preclusive effect and could not be relitigated. And on those facts (or facts′), which included bribery of a judge and falsification of an expert report, disbarment was clearly the right sanction. Here is the key line from the per curiam decision: “Respondent has been found guilty of egregious professional misconduct, namely, corruption of a court expert and ghostwriting his report, obstruction of justice, witness tampering, and judicial coercion and bribery which he steadfastly refuses to acknowledge and shows no remorse for.”

As I have written before, I do think that some of Judge Kaplan’s key findings are not just final but right. Donziger and his team did try to pass off a partisan expert report as independent. I was less sure about the evidence of judicial bribery, because I thought that the source of the evidence, the corrupt judge himself, lacked credibility. But as I say, whether right in whole or right in part, Judge Kaplan’s findings of fact, from which Donziger never appealed or sought postjudgment relief, are final.

Any disbarment is a sad occasion, and I hope Donziger’s many critics will be able to refrain from dancing on his professional grave. Donziger has, of course, vowed to appeal, calling the decision a “horrendous miscarriage of justice” by a “low-level appellate judge.” I understand, though, that in general, the prospects for a discretionary appeal to the New York Court of Appeals are not promising. What remains for him now is to learn whether he will be found guilty of criminal contempt of court. His trial, in New York, is currently scheduled for next month.

4 thoughts on “Lago Agrio: Donziger Disbarred”

  1. Dear Mr. Folkman, thankyou for keeping your readers updated. In Germany, only a criminal judgment against the lawyer is binding for the disciplinary court, neither the decision of a civil court nor administrative findings. Only the criminal court’s finding of fact would be binding, but not the criminal court’s legal assessment. Therefore the disciplinary court has to legally assess the facts by itself. Even then the disciplinary judges remain competent to make their own finding of fact if they are positively convinced that the criminal judge erred. I believe that this flexible approach is fairer than the appellate division’s strict concept of collateral estoppel, as the disbarment of a lawyer concerns highly sensitive constitutional questions. But what do you think?

    All the best from Hamburg

    Yours Philipp

    1. Dear Philipp, thank you for the interesting comment! I can imagine a rule like the rule that applies in Germany. We already have such a rule insofar as no findings of fact in a civil case can have preclusive effect in a criminal case. But I think that is because preclusion in that context would interfere with the defendant’s right to trial by jury and because the burden of proof is higher in a criminal case is higher than in a civil case. I believe that in New York the standard of proof in lawyer discipline cases in the same as in civil cases, and there are no issues about the right to a jury here. So I think the decision was correct given the law as it is. I could also imagine a system that imposed a higher burden of proof in disbarment proceedings, but I think our approach is not based on the rights of the lawyer but on protection of the public.

  2. “Any disbarment is a sad occasion”

    Is it? Or can it be a happy occasion when the public, and other litigators, are protected from fraud, malfeasance, etc? By the same token, is any imprisonment a sad occasion? Is it a matter of regret that, say, Dzhokhar Tsarnaev is imprisoned? For myself, I’m sad that Mr. Tsarnaev chose to do those terrible things, but him having chosen so to do, I’m not at all sad about him being imprisoned. And I’d be stunned if someone commenting on his trial went with that line.

    We all recognise this about ordinary misconduct. I worry that class interest and fellow-feeling draws us to a kind of closed solidarity with lawyers that we would recognise as wrong in other circumstances. And that misguided sympathy is reflected in the disciplinary bodies, which are, as a rule, far too lenient even with lawyers who have committed very serious misconduct. I have no wish to “dance on his grave,” but if Mr. Donziger has done half of what he’s accused of, losing his law license is a mild punishment indeed.

    I would rather say that lawyerly misconduct so egregious that it could lead to disbarment is sad.

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