On 3 August, Global Witness wrote to the Attorney Grievance Committee of the New York Bar’s First Division, expressing serious concerns about the removal of New York attorney Steven Donziger’s law licence. Donziger was classified as an “immediate threat to the Public Interest,” a designation used to summarily remove his licence at a July 10 court hearing. Nearly two months has passed and we have yet to receive any response to the serious points raised in our letter to the Grievance Committee, including a request to attend future hearings. An “after-the-fact” hearing is now scheduled to take place today (26 September) at the offices of the Grievance Committee in Manhattan.
Global Witness is concerned about the credibility and legitimacy of a process which can remove the law licence of a legal professional on the basis of a highly questionable and derogatory designation, such as that meted out to Donziger, without any formal hearing to allow for his defence to be taken into account, or for Donziger to provide evidence in his defence. Global Witness has since written to John R Horan, a New York Attorney, who has recently been appointed to oversee the next steps. As with the Grievance Committee, we have yet to receive any response from Mr Horan.
Key to the Grievance Committee’s assertion of Mr Donziger as a “threat,” is the claim that he did not challenge the 2014 decision of Judge Lewis Kaplan, in a civil RICO case mounted by Chevron - Chevron Corp. v Donziger - in which Donziger was found to have engaged in, inter alia, coercion, fraud and bribery in connection with a multi-billion-dollar judgement obtained in Ecuador against Chevron. Donziger challenges the entire basis of the Kaplan decision, and new evidence that has not been heard in a US court strongly supports his position.
In addition to allegations of bias, and concerns about the manner in which Judge Kaplan conducted the civil RICO case expressed by Mr Donziger’s counsel, a key witness whose testimony was central to the Kaplan findings has admitted under oath that he lied repeatedly in his testimony. The witness in question, the (by his own admission) corrupt former Ecuadorian Judge Alberto Guerra, has been paid substantially more than a million dollars by Chevron, and has received other benefits from the company, including a house, a car, and the provision of help with the immigration of his family from Ecuador. “In twenty-five years of corruption investigations, this has to be one of the biggest conflicts of interest I have come across – how could Judge Kaplan have found this witness to be credible? Now Guerra has admitted he lied on the stand, the central plank of the Kaplan decision collapses – Kaplan’s judgement has fallen flat on its face!” said Simon Taylor, Director of Global Witness.
In another twist, raising further concerns about the governance of New York’s legal profession, the Grievance Committee now appears to be making absolutely sure Donziger is denied the right to a hearing on the substance of the case against him – which he is entitled to in law - seeking instead to focus solely on the what punishment should now be applied. “In the absence of a better explanation, this entire process is starting to look like a systematic pursuit of Mr Donziger, so as to deny any airing of evidence that could challenge Judge Kaplan’s RICO case decision,” said Taylor. “The fact that such a flawed process is able to continue, even though four separate court layers in Ecuador – including the highest court in the country, the Constitutional Court – have effectively rejected Kaplan’s findings, instead affirming the liability of Chevron for the massive pollution caused by the dumping billions of gallons of toxic oil waste into the forest in Ecuador, is a terrible stain on the credibility of the New York Bar.”
Global Witness has been documenting the killings of frontline environmental defenders for many years, as part of its wider concern about the shrinking space for civil society to operate around the globe – civil society’s ability to operate being a central plank of an open, accountable and democratic society. It is shocking to note the similarities of behaviour between this case, and cases we have observed in a myriad Banana Republics around the world, where official harassment of anyone who threatens the powerful is the norm. Given the total lack of response to serious questions posed to the Grievance Committee, we are looking forward to receiving a public response to the concerns we set out in our letter. Nothing less than the credibility of New York as a jurisdiction that fights the corrupt is at stake.