2nd Atty Ordered To Keep Representing Donziger

By Craig Clough
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Law360 (September 3, 2020, 11:56 PM EDT) -- A New York federal judge on Thursday ordered a second attorney for Chevron foe Steven Donziger to continue representing him for his upcoming trial, saying an email from the attorney, Martin Garbus, seeking to bail from acting as Donziger's counsel does not relieve him of his duties.

Garbus' email telling the judge he cannot act as counsel for Donziger followed attorney Andrew Frisch was recently added back to the defense team after telling U.S. District Judge Loretta Preska that there is simply no way he can represent Donziger because their relationship is "beyond repair."

Frisch has hired his own attorney to represent him in his attempts to get out of representing Donziger. Garbus' email sent at 4:04 a.m. Thursday said he wanted to "make it clear that I am not going to participate in any way" in Donziger's trial, which is scheduled to begin Wednesday.

But the judge's brief order Thursday in response to the email said that as "long as Mr. Garbus' notice of appearance on behalf of Mr. Donziger remains on the docket, he will receive [court] filings and is expected to conduct himself as an officer of the court on behalf of his client."

Donziger, who helped win a roughly $9.5 billion judgment against Chevron Corp. in Ecuador that a U.S. federal judge ultimately found to be fraudulently obtained, is facing trial on criminal contempt charges that originated in that litigation. 

Donziger was recently disbarred in New York, against the recommendation of a referee, and is suspended in Washington, D.C. He has been under house arrest in Manhattan since last summer.

Donziger's former lead trial lawyer, Frisch, was granted a conditional withdrawal in July. But Judge Preska, who is overseeing the criminal case, added him back to the counsel listing last week 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.

On Wednesday, Garbus supported Frisch's move, and said Frisch's 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 Wednesday 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.

In his Thursday email to the court, Garbus said that since March he has been in Truro, Massachusetts, where he intends to stay "for the foreseeable future."

"I will not endanger myself, or render Mr. Donziger legal services that I deem constitionally [sic] defective and I will not and cannot participate in any trial where I am not in New York," he added.

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,  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. 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.

Counsel for the prosecution did not immediately respond to a request for comment. Garbus told Law360 he had not seen the judge's order. 

The prosecution 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.

The case is are U.S. v. Donziger, case number 1:19-cr-00561, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Cara Salvatore. Editing by Michael Watanabe.

Correction: An earlier version of this story misstated the time Garbus sent his email. The error has been corrected.

Clarification: The story has been updated to clarify that the Ecuador judgement was found to be fraudulently obtained by a U.S. federal judge.

For a reprint of this article, please contact reprints@law360.com.

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