Law360 (September 2, 2020, 11:34 PM EDT) -- Andrew Frisch, the New York defense lawyer who has been added back to the defense team of Chevron foe Steven Donziger in a criminal contempt trial starting next week, told a federal judge Wednesday there is simply no way he can represent his former client as their relationship is "beyond repair."
Donziger is facing allegations of criminal contempt for disobeying court orders in his ongoing legal battle with Chevron Corp. after winning a $9.5 billion judgment against the company in Ecuador over widespread environmental destruction there. A U.S. district court found the judgment was riddled with fraud and corruption, and that finding was upheld by an appeals court. Courts in Ecuador have upheld the judgment.
Donziger was recently disbarred in New York, against the recommendation of a referee, and is suspended in Washington, D.C.
The contempt trial is slated to begin Sept. 9, and U.S. District Judge Loretta Preska, who's overseeing the case, has shown no hint of willingness to delay it. The judge recently added back Frisch, who had withdrawn in July, as Donziger's counsel after other members of the defense team had to be disqualified.
Frisch told Judge Preska on Wednesday that it's not possible for him to participate.
"I respectfully advise the court unequivocally that it is untenable for me to represent Mr. Donziger at trial," Frisch said. "My relationship with Mr. Donziger and our ability to communicate constructively are beyond repair. Fundamental disagreements would render my representation of him at trial unreasonably difficult. I also believe that my representation of Mr. Donziger at trial might violate his Sixth Amendment right to effective assistance of counsel."
Though Donziger owes Frisch unpaid bills, Frisch said this is not the heart of the "longstanding" problems.
"On at least three specific occasions between February and early June 2020, I expected my attorney-client relationship with Mr. Donziger to end for reasons having nothing to do with fees," Frisch said, alluding to a difficult February phone call and warnings he gave to Donziger in May and June that he thought he would need to withdraw.
Frisch refused to give details beyond that, saying such details could harm Donziger's defense even if given only to Judge Preska, since she's the one who will decide his case. Frisch also said he has hired a lawyer who advised him he can't ethically represent Donziger.
Donziger lawyer Martin Garbus of Offit Kurman PA said Wednesday, "The Frisch declaration is consistent with what Mr. Donziger explained in open court last week — there are numerous significant conflicts that prevent Mr. Frisch from ethically representing him in this matter. These conflicts make the idea that Mr. Frisch could drop in and represent Mr. Donziger at a trial still scheduled for next week utterly absurd. ... Judge Preska should do the reasonable thing and postpone the trial until conditions allow it to be held consistent with the Constitution and public safety guidance."
Garbus also said it was not fair that prosecution testimony was being allowed via video, while Judge Preska had earlier asked Donziger's lawyers to fly cross country during the pandemic.
Donziger has asked for a jury trial, which special prosecutor Rita Glavin of Seward & Kissel LLP opposes. That motion was still pending as of Wednesday evening.
Frisch's lawyer, Harlan Protass, did not respond to a request for comment Wednesday. Nor did Glavin.
Glavin, whose firm has had Chevron as a client twice in recent years, was appointed by U.S. District Judge Lewis Kaplan to prosecute the charges.
Donziger and his 46 clients, representing 30,000 more people in a region in Amazonian Ecuador called Lago Agrio, obtained a $9.6 billion judgment in the early 2010s over widespread devastation left over from a joint oil extraction venture between Texaco and Ecuador.
In the case, called Aguinda, Donziger's clients said Texaco implemented no protections to keep its billions of gallons of extraction waste in pits and out of waterways. Chevron, which later bought Texaco, says Texaco was a party to a cleanup settlement that it has fulfilled.
Chevron then sued Donziger in the U.S., saying he had a judge bribed and judgments ghostwritten. Donziger's legal team maintains Chevron paid off a former Ecuadorian judge with a history of bribing and accepting bribes, Alberto Guerra, to falsely testify that Donziger bribed the judge in the Aguinda case, Judge Nicolas Zambrano, and wrote judgments that Zambrano signed.
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. The Second Circuit affirmed that decision.
The prosecution in the criminal case is represented by Rita Glavin, Brian Maloney and Sareen Armani of Seward & Kissel LLP.
Donziger is represented in the criminal case by Andrew Frisch of Schlam Stone & Dolan, 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.
In the civil case, Chevron is represented by Andrea Neuman, 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, Stewart Bishop, Emma Cueto, Caroline Simson, Keith Goldberg, Mike Curley and Andrew Strickler. Editing by Breda Lund.
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