Law360 (August 26, 2020, 10:30 PM EDT) -- Embattled lawyer Steven Donziger's former defense attorney may be ordered to come back to lead his trial next month if Donziger's current lawyer refuses to travel cross-country because of the pandemic, a New York federal judge warned this week.
A trial is set for Sept. 9 on criminal contempt-of-court charges tied to a refusal by Donziger, who was recently disbarred in New York state and is suspended in Washington, D.C., to comply with court orders, all stemming from his role in securing a $9.5 billion judgment against Chevron in Ecuador in the early 2010s over environmental pollution.
Donziger's lead counsel, Richard Friedman, who is based in Washington state, recently told the court he's highly opposed to the idea of his traveling for the trial, as is his personal doctor, and said the trial would be dangerous for all involved.
That prompted U.S. District Judge Loretta Preska on Monday to enter a highly unusual order notifying Donziger's former counsel, Andy Frisch, that he "may be required to serve as Mr. Donziger's attorney at the trial" and that the trial "will commence."
Frisch's withdrawal in July was granted by Judge Preska at the time "provided that his withdrawal does not affect the trial date."
Friedman said by phone Wednesday that the four current members of the trial team "all have serious reservations about flying to New York for a petty misdemeanor."
"It seems like the Southern District has a special set of rules for Steven Donziger that apply only to him. I don't know of any other criminal defendant in the Southern District being pushed to trial right now," Friedman said.
Friedman also acknowledged the difficulty of Frisch's position. "I don't know how Andy feels about this or what he's planning to do. At this point, I don't think Clarence Darrow could get ready for the trial in two weeks," Friedman said, referencing the renowned early-20th-century trial lawyer.
Frisch did not respond to messages seeking comment.
Meanwhile, Donziger is also arguing to the court, which has been planning a bench trial, that he deserves a trial by jury as guaranteed by the U.S. Constitution.
The contempt charges against him are not "petty," he said, and are not subject to any exceptions applying to the right to a trial by jury.
"Mr. Donziger is not being charged with disobedience of orders regarding filing deadlines, court appearances, or other misfeasance. Rather, the heart of the charges levied against Mr. Donziger accuse him of attempting to deliberately obstruct justice," he said in his motion for a jury trial.
The criminal allegations are the latest wrinkle in a long fight that began in Ecuador, where some 30,000 people said they'd been hurt by environmental pollution to rivers and streams in the Amazon near an oil field in northern Ecuador, causing massive ecological damage to the region and harm to residents.
A court in Ecuador ordered Chevron to pay $19 billion in 2011, though the amount was later cut in half to $9.5 billion.
U.S. District Judge Lewis Kaplan ruled in 2014 that the Ecuador judgment was ghostwritten by Donziger and was the product of bribery in the South American nation. That decision was affirmed by the Second Circuit.
An international tribunal in The Hague concluded in 2018 that the judgment was tainted by fraud and that Ecuador wrongly enforced the ruling. Four levels of courts in Ecuador have upheld the judgment.
After the U.S. attorney's office declined to prosecute Donziger on contempt, Judge Kaplan appointed a former prosecutor, Rita Glavin, to continue pursuing the charges. Glavin's team opposes delaying the trial. Glavin and a lawyer for Chevron were not immediately available for comment Wednesday.
Donziger has said Judge Kaplan "hand selected" a law firm with ties to Chevron to press the contempt charges.
The prosecution is represented by Rita Glavin, Brian Maloney and Sareen Armani of Seward & Kissel LLP.
Donziger is represented by Richard Friedman of Friedman Rubin PLLP, Martin Garbus of Offit Kurman PA, Zoe Littlepage of Littlepage Booth Leckman and Lauren Regan of the Civil Liberties Defense Center.
Chevron is represented by Randy Mastro 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 Stewart Bishop, Emma Cueto, Caroline Simson and Andrew Strickler. Editing by Jack Karp.
Update: This story has been updated to note that Donziger has been disbarred in New York state.
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