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Open Letter to the New York Court of Appeals October 21, 2020 Chief

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Open Letter to the New York Court of Appeals October 21, 2020 Chief Open Letter to the New York Court of Appeals October 21, 2020 Chief Judge Janet DiFiore Judge Jenny Rivera Judge Leslie Stein Judge Eugene M. Fahey Judge Michael J. Garcia Judge Rowan D. Wilson Judge Paul Feinman New York Court of Appeals 20 Eagle St Albany, NY 12207 Re: Steven R. Donziger’s Motion for Permission to Appeal his Disbarment Dear Judges of the New York Court of Appeals, We, law students pursuing careers in the public interest, write to support Steven Donziger’s motion for permission to appeal his disbarment by the Appellate Division, First Department. In particular, we are disturbed that the First Department applied collateral estoppel to deprive Mr. Donziger of an opportunity to challenge the grounds for his disbarment. We urge the Court of Appeals to end this practice. Future public interest lawyers must be able to expect fair proceedings in front of the bar if they are forced to defend themselves against the retaliatory tactics that Mr. Donziger has faced. Between 1993 and 2011, the American attorney Steven Donziger represented indigenous Ecuadorians in a class action lawsuit.1 The Ecuadorians hoped to hold Chevron accountable for severely damaging their region of the Amazon. Mr. Donziger succeeded in obtaining a $9.5 billion judgement for his clients, which Ecuador’s highest court affirmed unanimously. However, shortly before the Ecuadorian trial court issued its judgment, Chevron commenced a civil RICO action against Mr. Donziger in the United States District Court for the Southern District of New York. The oil giant accused Mr. Donziger of bribing an Ecuadorian judge to issue a ghost- written decision in favor of his clients. Drastic resource disparities and scorched-earth tactics characterized the litigation that followed. Chevron employed 60 law firms and more than 2,000 lawyers to prosecute Mr. Donziger in a bench trial.2 Mr. Donziger, in contrast, mostly defended himself, with limited legal 1 James North, How a Human Rights Lawyer Went from Hero to House Arrest, THE NATION (Mar. 31, 2020), https://www.thenation.com/article/activism/steven-donziger-chevron/. 2 Michael D. Goldhaber, Chevron by the Numbers: 60 Law Firms, 114 Gibson Dunn Lawyers, 117 Charges of Ghostwriting, THE AM. LAWYER (Mar. 4, 2013, 08:11 AM), https://www.law.com/americanlawyer/almID/1202590909084/ 1 assistance for discrete portions of the case. Significant evidence emerged after the trial that raised questions about the court’s findings.3 Nevertheless, the First Department gave preclusive effect to these findings and disbarred Mr. Donziger without a hearing. Jurists and human rights experts from around the world have expressed grave concern over the implications of Mr. Donziger’s case.4 Giving preclusive effect to civil findings in disbarment proceedings threatens critical public interest litigation that grants underrepresented groups access to justice. Mr. Donziger’s experience is part of a pattern. Corporate actors have weaponized civil RICO lawsuits to retaliate against human rights defenders.5 Strategic lawsuits against public participation (“SLAPP”) like this one have the potential to deter attorneys from pursuing important public interest work; the threat of disbarment as an automatic consequence of SLAPP litigation would only exacerbate this problem. The First Department’s use of collateral estoppel in disbarment hearings sends a signal to public interest lawyers that they will have to choose between jeopardizing their careers and abandoning their underrepresented clients. This predicament disincentivizes the public interest advocacy that is key to social progress. Accordingly, we urge the New York Court of Appeals to grant Mr. Donziger’s motion for permission to appeal his disbarment. We also ask that other New York courts abandon the practice of giving collateral effect to civil findings in disciplinary matters. The Court of Appeals’ failure to address this critical matter could put the future of public interest advocacy at risk. Sincerely, The undersigned law students and organizations: 3 Adam Klasfeld, Ecuadorean Judge Backflips on Explosive Testimony for Chevron, COURTHOUSE NEWS (Oct. 26, 2015), https://www.courthousenews.com/ecuadorean-judge-backflips-onexplosive-testimony-for-chevron/ (reporting that Chevron’s key witness repudiated much of his testimony). 4 Harper Neidig, Human Rights Experts Band Together to Monitor Chevron Foe's Criminal Trial, THE HILL (Aug. 17, 2020, 5:15 PM EDT), https://thehill.com/regulation/court-battles/512395-human-rights-experts-band- together-to-monitor-chevron-foes-criminal; Over 475 Lawyers, Legal Organizations and Human Rights Defenders Support Lawyer Steven Donziger, INT’L ASSOC. DEMOCRATIC LAWYERS (May 18, 2020), https://iadllaw.org/2020/05/over-475-lawyers-legal-organizations-and-human-rights-defenders-support-lawyer- steven-donziger/; Brief of Amici Curiae International Association Of Democratic Lawyers and National Lawyers Guild, No. 20-1940 (2d Cir. Jun. 30, 2020), at https://iadllaw.org/newsite/wp-content/uploads/2020/06/NLG- NADL-Brief-to-file.pdf (letter “garnered over 475 signatures from countries including Ecuador, Canada, Mexico, Paraguay, Turkey, India, Germany, France, Portugal, Italy, Greece, Palestine, Brazil, Ireland, Cuba, Japan, Pakistan, Bangladesh, South Africa, and the UK, and individuals such as the President of the Paris Bar, the Secretary General of the European Association of Lawyers for Democracy and Human Rights, the forthcoming President of the European Federation of Bars . and many more”). See also Letters from European Parliament’s Subcommittee on Human Rights to Mr. James P. McGovern, Mr. Christopher H. Smith, Co-Chairs, Tom Lantos Human Rights Commission, United States Congress (EXPO-A-DROI D(2020) 21279 D 102034 16.07.2020); Mr. Steve Cohen, Chair, Subcommittee on the Constitution, Civil Rights, and Civil Liberties, United States Congress (EXPO-A-DROI D(2020) 21242 D 102033 16.07.2020). 5 See, e.g., Resolute Forest Prod., Inc. v. Greenpeace Int'l, 302 F. Supp. 3d 1005 (N.D. Cal. 2017) (dismissing $300 million RICO lawsuit filed against environmental activists); Energy Transfer Equity, L.P. v. Greenpeace Int'l, 2019 U.S. Dist. LEXIS 32264, at *13 (D.N.D. Feb. 14, 2019) (holding that the Dakota Access Pipeline protests fall “far short of what is needed to establish a RICO enterprise.”). 2 Organizations 1. American Constitution Society at Brooklyn Law School 2. American Constitution Society at Buffalo School of Law 3. American Constitution Society at Columbia Law School 4. American Constitution Society at New York University School of Law 5. American Constitution Society at Ohio State University Moritz College of Law 6. American Constitution Society at Seattle University School of Law 7. American Constitution Society at Stanford Law School 8. American Constitution Society at University of North Carolina School of Law 9. American Constitution Society at University of St. Thomas Law School 10. Coalition for Social Justice at St. John’s School of Law 11. National Lawyers Guild at Boston University School of Law 12. National Lawyers Guild at Brooklyn Law School 13. National Lawyers Guild at Cardozo Law School 14. National Lawyers Guild at DePaul University College of Law 15. National Lawyers Guild at Fordham University School of Law 16. National Lawyers Guild at Northeastern School of Law 17. National Lawyers Guild at Seattle University 18. National Lawyers Guild at St. John’s School of Law 19. National Lawyers Guild at Stanford Law School 20. National Lawyers Guild at UC Irvine School of Law 21. National Lawyers Guild at University of Michigan Law School 22. National Lawyers Guild at University of Pennsylvania Carey Law School 23. National Lawyers Guild at University of Utah S.J. Quinney College of Law 24. National Lawyers Guild at Yale Law School 25. Moritz College of Law ACLU 26. Stanford Advocates for Immigrants’ Rights 27. Ohio State University Energy and Environmental Law Society 28. Stanford Environmental Law Society 29. UC Irvine School of Law Environmental Law Society 30. Yale Environmental Law Association Individuals 1. Catherine Rocchi (author), New York native and Stanford Law School Class of 2022 2. Elias Schultz (author), New York native and Stanford Law School Class of 2022 3. Aaron Gladstone, Fordham Law School Class of 2021 4. Abby O’Leary, Case Western Reserve University School of Law Class of 2022 5. Abhi Parekh, University of Michigan Law School Class of 2023 6. Ada Statler, Stanford Law School Class of 2022 3 7. Addison McCauley, Creighton University School of Law Class of 2022 8. Adrienne Irmer, Stanford Law School Class of 2023 9. AJ Hudson, Yale Law School Class of 2023 10. Alec Soghomonian, NYU School of Law Class of 2022 11. Alexandra Newton, NYU School of Law Class of 2023 12. Alisa White, Yale Law School Class of 2022 13. Allison Wise, Northeastern University School of Law Class of 2023 14. Alyse Horan, Cornell Law Class of 2023 15. Amalee Beattie, Berkeley Law, 2022 16. Amanda Chang, UC Berkeley School of Law Class of 2023 17. Andrea Smith, NYU Law School Class of 2022 18. Andrew Vaccaro, NYU School of Law Class of 2023 19. Andrew Wilson, University of St. Thomas School of Law 20. Angela Zhao, Berkeley Law Class of 2023 21. Anna Meixler, NYU Law School Class of 2022 22. Annabelle Wilmott, Berkeley Law Class of 2022 23. Anthony Cascione, Harvard Law School Class of 2021 24. Ariana Abedifard, Berkeley Law Class of 2022 25. Arielle Lipan, NYU School of Law Class of 2023 26. Arni Daroy, UC Berkeley School of Law Class of 2023 27. Axel Hufford, Stanford Law School Class of 2022 and New York native 28. Aya Beydoun, NYU School of Law Class of 2023 29. Azeezat Adeleke, Stanford Law School Class of 2022 30. Becca Lynch, Penn Law Class of 2022 31. Ben Rashkovich, Yale Law School 2022 32. Benjamin Halom, Stanford Law School Class of 2023 33. Bree Baccaglini, Stanford Law School Class of 2021 34. Brett Diehl, Stanford Law School Class of 2021 35.
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