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Law360 (September 2, 2020, 12:10 AM EDT) —
A former defense counsel for Chevron foe Steven Donziger has hired his own lawyer to fight the possibility he’ll have to represent the disbarred attorney at a criminal contempt trial slated to begin this month, according to an email obtained by Law360.
Donziger, who helped win a roughly $9.5 billion judgment against Chevron Corp. in Ecuador that the oil company says was fraudulently obtained, is facing trial Sept. 9 on criminal contempt charges that had their origins in that litigation. Donziger was recently disbarred in New York, against the recommendation of a referee, and is suspended in Washington, D.C.
Donziger’s former lead trial lawyer, Andrew Frisch, was granted a conditional withdrawal in July. But U.S. District Judge Loretta Preska, who is overseeing the criminal case, added him back to the counsel listing late Friday after disqualifying two of Donziger’s other lawyers due to potential conflicts.
Frisch has hired Harlan Protass of Protass Law to help argue that Frisch should not have to lead Donziger’s defense, according to an email Protass sent Judge Preska’s chambers on Monday that was obtained by Law360.
“Mr. Frisch and I are currently working on a submission to the court detailing the reasons that Mr. Frisch cannot represent Mr. Donziger at trial (on September 9 or any later date that the court might set for trial),” the letter said.
Protass and Frisch did not return calls Tuesday.
In another development, the court-appointed special prosecutor for the case told Judge Preska the trial should not be held before a jury, as Donziger has requested.
The special prosecutor, Rita Glavin of Seward & Kissel LLP, said that the case is not serious enough to guarantee Donziger that right.
Judge Preska has decided Donziger faces a maximum of six months behind bars. At that level of penalty, Glavin’s team said a jury trial is not guaranteed, and there is no other simultaneous crime that might activate the trial right either.
Donziger’s claim that the counts against him arguably constitute obstruction of justice, another crime, “is meritless,” Glavin said.
The criminal contempt charges stem from a July 30 order by U.S. District Judge Lewis Kaplan saying that Donziger has not complied with the judge’s civil-court orders directing the defendant to provide access to his computers, phones, email and social media accounts for forensic inspection. Judge Kaplan, who has presided over litigation between the two parties, has largely sided with Chevron on its claims that Donziger used fraud in obtaining the $9.5 billion oil pollution judgment in Ecuador against the $226 billion energy giant.
Chevron filed a racketeering suit in 2011 alleging Donziger led a global extortion campaign to win the Ecuadorian court judgment against the company.
Glavin, who was appointed special prosecutor by Judge Kaplan, also rejected Donziger’s argument that the outcome of this trial could have an effect on his ability to seek reinstatement of his law license in New York.
Frisch was restored to the trial counsel list shortly after Judge Preska had disqualified two of Donziger’s other lawyers based on potential conflicts due to their emails being possible evidence in the contempt trial. She previously warned Frisch he might be ordered to come back.
One of the disqualified lawyers, Richard Friedman, filed an ethics complaint Monday with the chief judge of the Southern District of New York and the chief judge of the Second Circuit, asking for an investigation into whether there have been ex parte communications between Judge Kaplan and Glavin.
And on Tuesday, a host of groups led by the National Lawyers Guild and the International Association of Democratic Lawyers filed their own ethics complaint to Second Circuit Chief Judge Robert Katzmann regarding Judge Kaplan.
“Kaplan denied Donziger a jury, put in place a series of highly unusual courtroom tactics, severely restricted Donziger’s ability to mount a defense, and through his [hand]picked judge to try him for criminal contempt has had him detained him at home for more than one year on contempt charges that were rejected by the U.S. Attorney, and allowed him to be prosecuted by a private law firm that has Chevron as a client,” the group said.
Donziger has been under house arrest in Manhattan since last summer.
Donziger has petitioned the Second Circuit for a writ of mandamus regarding the propriety of the Seward & Kissel team’s role. The firm represented Chevron in two matters in 2016 and 2018.
The developments are the latest in a long fight that began in Amazonian Ecuador on the Colombian border, where 46 plaintiffs representing some 30,000 Indigenous people said Chevron needed to pay for remediation of environmental harm from at least 100 oil pit sites created by a joint venture between Texaco and Ecuador, running from roughly the 1970s to the early 1990s. Chevron later acquired Texaco and maintains Texaco fulfilled its legal cleanup obligations.
A court in Ecuador ordered Chevron in 2011 to pay nearly $17.3 billion, but an appeals court there erased the punitive damages, leaving the judgment at roughly $8.6 billion.
Legal fees and whistleblower awards brought the final tab to $9.5 billion.
After a weekslong bench trial in 2013, Judge Kaplan ruled in 2014, that the Ecuador judgment was ghostwritten by Donziger and was the product of bribery in the South American nation. The Second Circuit affirmed that decision.
An international tribunal in The Hague concluded in 2018 that the award was tainted by fraud and bribery and that Ecuador wrongly enforced the ruling. Four levels of courts in Ecuador have upheld the judgment.
Prominent lawyers have formed a committee to monitor Donziger’s trial, something they said is often necessary in less developed countries but rarely in the U.S.
The prosecution is represented by Rita Glavin, Brian Maloney and Sareen Armani of Seward & Kissel LLP.
Donziger is represented by Martin Garbus of Offit Kurman PA and Lauren Regan of the Civil Liberties Defense Center.
Andrew Frisch is represented by Harlan Protass of Protass Law.
Chevron is represented by Randy Mastro and Ted Olson of Gibson Dunn & Crutcher LLP.
The cases are U.S. v. Donziger, case number 1:19-cr-00561, and Chevron v. Donziger, case number 1:11-cv-00691, in the U.S. District Court for the Southern District of New York.
–Additional reporting by Pete Brush. Editing by Jill Coffey.
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