But a second set of outtakes filed last month by Chevron has largely escaped notice outside of industry Web sites. In consenting to the filming, lead U.S. plaintiffs’ lawyer Steven Donziger apparently operated on the mistaken belief that the film was not discoverable, because as he says on camera, “we don’t have the power of subpoena in Ecuador.” (Donziger and his personal attorney declined to comment for this story.) These new transcripts are startling — see here and here — and they raise the important issue of what legal ethics apply to U.S. lawyers overseas.
In one key outtake, Donziger expresses concern to two colleagues that the Ecuadorian court is stalling over swearing in a global damages expert. Donziger then remarks:
“We have concluded that we need to do more, politically, to control the court, to pressure the court. We believe they make decisions based on who they fear the most, not based on what the laws should dictate. So, what we want to do is to take over the court with a massive protest that we haven’t done since the first day of the trial, back in October of 2003. Remember all those people on the street? … It’s a huge effort, it costs money. Not that much actually, but, few thousand dollars, to get everyone in for a day. … But it — it’s — it’s a critically important moment, because we want to send a message to the court that, ‘don’t fuck with us anymore — not now, and not — not later, and never.’”
Donziger goes on to float the idea of organizing an initial march of 500 people, followed by a “permanent watch” of twenty or thirty people, whom he estimates will cost $100,000 for the year, to “follow … the expert, to protect the court, to prevent corruption. Prevent corruption. We need people. It’s a force, a political force that the judges can see…paid by us, for their time to protect the process from corruption.” Donziger goes on: “This is Ecuador. … You can say whatever you want, and at the end of the day, there’s a thousand people around the courthouse, you’re going to get what you want. Sorry, but it’s true.”
In their discovery brief on point, plaintiffs dismiss the problematic quotations as “jokes, hyperbole, [and] de-contextualized stray comments.” They emphasize Donziger’s description of the proposed monitors’ role as “to protect the process from corruption.” Plaintiffs go on to argue that the “irony” of the clips, “is that the subjects are discussing the need to protect the legal process from Chevron’s pressure.”
But even if one discounts as a joke the use of the word “army,” and takes as hyperbole the expression of satisfaction that the judge may fear being “killed,” one is left with a straightforward account of how plaintiffs have hired protesters outside the courthouse, and plan to do so again. It’s hard to read the transcripts filed by Chevron without concluding that Donziger’s intent in doing so was to put political pressure on the court.
Donziger may well have felt that such tactics were necessary to counterbalance Chevron’s own improprieties. However, if plaintiffs ever establish any misconduct by Chevron’s lawyers, that wouldn’t mitigate any misconduct by plaintiffs’ lawyers. And it could only weaken the case for enforcement of an Ecuadorian judgment.
No court has yet given a close reading to the transcript passages that we focus on here, but as a general matter, U.S. courts have taken the outtakes seriously enough to help support pro-discovery rulings in three circuit courts and eleven district courts, including four district courts that have found probable cause of fraud. See Roger Parloff’s excellent story on the state of play.
When we asked Chevron’s lawyers what would be their next steps, Andrea Neuman of Gibson, Dunn & Crutcher chose her words carefully. “We’re taking a careful look at Chevron’s rights, including its rights under RICO,” she said, “and we’re very cognizant of the responsibility of all lawyers to refer appropriate matters to the bar disciplinary committee.”
In Corporate Counsel sibling publication The American Lawyer‘s Bar Talk section in October, we’ll examine Chevron’s RICO option. For this column, we asked two scholars to help assess the legal ethics. Both spot a host of ethical issues, including Chevron’s allegations, based on the first set of transcripts, that plaintiffs undermined justice through systematic ex parte contacts with the court-appointed damages expert. (Plaintiffs have argued that ex parte contacts are culturally accepted in Ecuador, and that they broke no rules.)
“It’s clear Donziger is crass, profane, and irreverent,” said Nora Freeman Engstrom, a Stanford Law School expert on plaintiffs’ lawyer ethics. “Far less clear is whether he’s engaging in serious professional or criminal wrongdoing, although it’s possible.” She added: “Our system does not require as precondition of advocacy absolute trust in one’s tribunal.”
Catherine Rogers of The Dickinson School of Law at Penn State University, who studies global legal ethics, was more troubled by the transcripts. “If it turns out to be true they paid people to intimidate the court and make the judge fear for his life in a way that was designed to affect his judicial ruling, that’s nowhere close to the line of what is ethical,” she said. “That’s thuggery, an interference with the administration of justice, and a gross violation of the ethical rules of every jurisdiction I am familiar with.”
In her writings and lectures, Rogers has argued that U.S. ethical rules should generally be understood as applying to U.S. lawyers’ conduct in foreign tribunals and justice systems, and that the New York Lawyer’s Code of Professional Responsibility clearly does apply. Among the relevant rules in New York: Rule 3.5(a)(1) says that a lawyer shall not seek “to influence a judge, official or employee of a tribunal by means prohibited by law.” New York Rule 8.4 says it’s misconduct to “engage in conduct that is prejudicial to the administration of justice.” And Rule 3.3(f)(4) says a lawyer shall not “engage in conduct intended to disrupt the tribunal.”
U.S. lawyers working in legal systems in less-developed countries can sometimes act “like college students on spring break in Mexico,” Rogers said. “The mentality is ‘I can do just about anything here because it doesn’t count.’ Well, even if you go to a system with endemic corruption, that doesn’t mean you’re allowed to participate in it. You’re supposed to be the bulwark against it. You’re still a U.S. attorney and in most instances still subject to U.S ethical rules.”
Plaintiffs’ spokesperson Karen Hinton said in a statement: “Chevron has snippets of video outtakes heavily edited and taken out of context. The court has over 60,000 contamination samples from Chevron well sites verified by independent laboratories that show illegal levels of toxins that have been destroying the environment and human health for five decades. We will take those odds any day in any court when all of the evidence can be presented.”
Undaunted, plaintiffs are pressing ahead in Ecuador, while Ecuador pursues its own U.S. discovery against Chevron. A separate post for Litigation Daily sister site The Am Law Daily this week will take a look at their latest offensives.