Jonathan P. Baird

The saga of Attorney Steven Donziger continues and the news is not good. On October 1, New York Federal Judge Loretta Preska sentenced Donziger to six months in federal prison for a misdemeanor charge of criminal contempt. This was the maximum penalty allowed.

This is on top of the 787 days Donziger has already spent under house arrest while being forced to wear an ankle bracelet.

The Court has additionally imposed millions of dollars in fines and court costs against Donziger. The Court already let Chevron swoop into Donziger’s bank accounts and take his life savings to cover Chevron’s attorney fees. Chevron has another pending motion to make Donziger pay another $32 million in their attorney’s fees. The Court also allowed Chevron to place a lien on Donziger’s apartment in Manhattan where he lives with his family.

The original trial judge on the RICO case, Judge Kaplan, orchestrated Donziger’s disbarment as a lawyer without a hearing where he could present factual evidence. Donziger now has no means to earn income in his profession.

If there is anything else that Chevron and their favorite judges could do to torture Donziger, it is hard to imagine.

I previously wrote about Donziger and Chevron but just to refresh recollection: Donziger is a human rights and environmental lawyer. His crime is that he was too successful in suing oil companies. On behalf of the indigenous people of Ecuador, Donziger and his legal team won an epic multi-billion dollar judgment against Chevron for their extensive pollution of the rain forest.

Chevron (previously Texaco) had discharged 16 billion gallons of toxic waste into Ecuador’s rivers, groundwater and farmland. Now Chevron, rather than paying the court judgment, is making Donziger pay.

Just before Judge Preska sentenced Donziger, the United Nations Commission on Human Rights, the top human rights legal body in the world, issued a ruling in favor of Donziger. The U.N.’s Working Group on Arbitrary Detention called Donziger’s already over two year home detention “appalling” and said it violates international law. The U.N. opinion said the judges in this case displayed a “staggering lack of objectivity and impartiality” toward Donziger.

The opinion noted:

“The charges against and detention of Mr. Donziger appears to be retaliation for his work as a legal representative of indigenous communities as he refused to disclose confidential correspondence with his clients in a very high profile case against multi-national business enterprise.”

The U.N. Working Group found that Donziger was a “human rights defender” and that his treatment violated both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Taking into account all circumstances, the U.N. Working Group wrote that the “appropriate remedy would be to release Mr. Steven Donziger immediately and accord him an enforceable right to compensation and other reparation in accordance with international law”.

No lawyer has ever been charged with criminal contempt for seeking judicial review of a civil discovery order. For the level of offense, no lawyer in New York has ever served more than 90 days and that was in home confinement.

The Court has wanted Donziger to turn over all his electronic devices, compromising his clients’ privilege. It is worth going back to a lawyer’s ethical duties under the Model Rules of Professional Conduct, the gold standard for lawyers. Rule 1.6(a) states, in relevant part:

“A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent.”

It is not an exaggeration to say that release of confidential client information could be dangerous for Donziger’s clients. Killings of environmental activists resisting extractive industries has been on the global upswing. Donziger has made clear he would turn over his electronic devices once a protocol is worked out that protects privilege.

Stepping back from the case, some observations are required. In Donziger’s case, the Court has clearly lost its way. A pro-corporate bias has corrupted the proceedings. The penalties imposed against Donziger are wildly excessive and not commensurate with his actions representing indigenous Ecuadorans.

The maximum penalty is six months’ imprisonment. Donziger has already served the maximum penalty more than four times over. The Court is acting like the home confinement was nothing. Under international law, house arrest counts as detention. Donziger has no criminal record. He has a history of good deeds as a lawyer. The U.N. identifies him as a “human rights defender’.

When Judge Preska sentenced Donziger, she brushed over the U.N. opinion. She crassly said,

“It seems that only the proverbial two-by-four between the eyes will instill in him any respect for the law.”

Donziger has two weeks to appeal Judge Preska’s order that he be sent immediately to jail. He is appealing. Judge Preska denied Donziger bail claiming he posed a flight risk. Donziger told the journalist Chris Hedges:

“What Judge Preska is trying to do is force me to serve the entirety of my sentence before the appellate court can rule. If the appellate court rules in my favor, I will still have served my sentence, although I am innocent in the eyes of the law.”

In a perverse way, this case illustrates our underlying climate change reality. A multi-national fossil fuel company rapes the environment. When indigenous people who were victimized seek justice, a pro-corporate judiciary sides with the environmental rapist and brutally punishes the victims’ advocate.

The Intergovernmental Panel on Climate Change has made clear that climate change is here and it is caused by fossil fuels. Many young people suffer climate anxiety because humanity has failed to respond. Donziger’s case is a perfect example of why so many have lost faith in the system.