Chevron Law Firm Has Billed Taxpayers $464,000 to "Prosecute" Human Rights Lawyer Steven Donziger
Amount Is 150 Times Higher Than the Norm for Misdemeanor; Seward $ Kissel Partner Rita Glavin Under Scrutiny
New York – With trial still months away, the private Chevron-linked law firm appointed to prosecute human rights attorney Steven Donziger on a petty misdemeanor after the charges were rejected by the U.S. Attorney has billed taxpayers at least $464,000, according to stunning new disclosures ordered by a New York federal court.
Donziger is the U.S. lawyer who helped Indigenous peoples and rural communities in Ecuador win a $9.5 billion pollution judgment against Chevron in 2011 after multiple courts found the company dumped billions of gallons of toxic oil waste into the Amazon. That judgment has been affirmed by 29 appellate judges, including the highest courts of Ecuador and Canada.
In an extraordinarily rare maneuver, U.S. Judge Lewis Kaplan charged Donziger in 2019 with criminal contempt after he refused to turn over his computer and other electronic devices to Chevron while an appeal was pending on whether the unprecedented order was even lawful. (The appeal is still pending.) Kaplan then had Donziger put in home detention -- he is still the only person in the country detained on a misdemeanor -- where he has languished for the last 18 months without trial. The detention has prompted outrage around the world from 55 Nobel Laureates, hundreds of lawyers and bar associations, and many journalists and artists.
The standard reimbursement to a lawyer in New York for defending a misdemeanor is $3,200, or about 150 times less than what the Seward & Kissel firm working on the matter has been paid by taxpayers to prosecute Donziger in what clearly has become a “a highly questionable for-profit" endeavor that serves Chevron’s interests, said Rex Weyler, co-founder of Greenpeace who has written extensively about the case.
The Seward & Kissel firm disclosed that it billed taxpayers $262,975 in 2020 alone – and $464,720 total -- for a case that started in August 2019 and will continue for at least several more months given a trial date of May 10 due to delays caused by the COVID pandemic. (The recent Seward invoices are here and all Seward invoices that have been disclosed are here.)
The Seward law firm’s role as private prosecutor is riddled with conflicts starting with the enormous sums of money the firm is collecting from taxpayers to target Chevron’s main foe while keeping Chevron and other oil-related entities as private clients, say Donziger attorneys Ronald Kuby and Marty Garbus. The firm, appointed by Judge Lewis Kaplan after the U.S. Attorney declined the case, helped force Donziger into house arrest just as he was traveling to help his clients enforce the judgment in Canada and other countries.
After Donziger had spent 7 months in house arrest, Seward partner Mark Hyland finally admitted in a court filing that Chevron had been a client of the firm. This admission followed a stunning affidavit by a renowned ethics expert that exposed extensive financial ties between Seward and several Chevron-related entities in the oil and gas industry -- including to Oaktree Capital, which has had executives serve on Chevron’s Board of Directors.
Despite Seward’s conflict with Chevron, the firm’s partnership – overwhelmingly white and male without a single African-American – refused to disqualify the firm from the prosecution. Donziger is now detained 18 months even though the maximum sentence if convicted is six months in prison and the longest sentence ever imposed on a lawyer is three months of home confinement.
Garbus says Donziger is the only person in the country without a criminal record locked up prior to trial on a misdemeanor, proving that Chevron is really in control of the case.
“The normal prosecutor refused to bring the case,” said Garbus. “No normal professional prosecutor ever would have locked up a lawyer prior to trial under these circumstances, particularly when it appears he did nothing wrong other than contest discovery orders issued by Judge Kaplan. What really is driving this is Chevron’s fear that Mr. Donziger’s work risks its assets in other countries.”
The three-person Seward prosecuting team, led by partner Rita Glavin, also has refused to disclose several months of its billing which likely will drive the total amount collected above $600,000, said Kuby. The latest bill totaled approximately $95,000 based on hourly rates of $300 for lawyers and $100 for paralegals. Kuby said based on the Seward’s pattern of billing it is likely the actual tab for its work will easily surpass $1 million given the May trial and likely appeals.
Lawyers for Donziger called on Glavin and Seward to be disqualified to comply with ethics obligations, which require prosecutors to be disinterested and have no financial ties to a case. A recent investigation by the ethics expert, Ellen Yaroshefsky, found Seward’s “extensive financial ties” to the oil and gas industry merit disqualification, consistent with prosecutorial standards put forth by the Department of Justice and the American Bar Association. (See here.)
Yaroshefsky, a former expert for the American Bar Association, also said the oil industry has targeted Donziger for years for winning the Ecuador judgment. Chevron alone has used 60 law firms and 2,000 lawyers in the case. “Even based solely on the public record of Seward’s financial interests in Chevron-related entities, there exists a disqualifying conflict of interest,” Yaroshefsky wrote.
Donziger’s lawyers also criticized the firm.
“Seward & Kissel’s conflicts and its for-profit targeting of a significant American human rights lawyer is an affront to the rule of law and is designed to serve the interests of its client base in the oil industry, including Chevron,” said Garbus, who has practiced law for six decades in New York and has represented Nelson Mandela, Daniel Ellsberg, and Cesar Chavez.
“The firm should immediately disqualify itself and be subjected to bar discipline for even taking the case as far as I am concerned,” said Garbus. “This is a flagrant violation of ethics. No court system that respects the rule of law should put up with this type of misconduct.”
“As the government debates which Americans are deserving of $1,400 to survive the pandemic, it is obscene that federal judges are willing to turn on a spigot of endless taxpayer dollars to enrich corporate lawyers trying to put a human rights lawyer in jail,” said Kuby.
The Seward bills also do not include payments Chevron has made to support the prosecution via its main private law firm, Gibson Dunn & Crutcher. Lawyers at Gibson Dunn, including Randy Mastro, appear to be helping Glavin with her legal filings and are planning to testify against Donziger at trial. The firm has billed Chevron upwards of $1 billion for its work on the case over the last decade.
Glavin and her partners, including Brian Maloney and Sareem K. Armani, also have violated ethics rules by stonewalling requests to disclose details about the firm’s representation of Chevron and whether it is related to the Ecuador case. Glavin, who has a history of ethics violations as a former federal prosecutor, also has not denied allegations from Donziger’s ex-attorney Richard Friedman that she engaged in illegal ex parte conversations with Judge Kaplan about the case.
Kaplan, the former tobacco industry lawyer, is a controversial figure in his own right.
Kaplan disclosed he has personal money in a mutual fund that has extensive investments in Chevron and the oil and gas industry generally. (See here.) Kaplan not only charged Donziger after the New York federal prosecutor rejected his charges, but he also bypassed the random case assignment procedure and appointed a colleague, Loretta Preska, to preside.
It turns out Judge Preska is a prominent member of the pro-corporate Federalist Society, to which Chevron is a major donor. Preska and Glavin also serve together on a Fordham Law School alumni committee, which at a minimum creates an appearance of a conflict, said Garbus.
“This entire case appears to be an inside job involving collusion between Kaplan, Preska, Glavin, and Chevron lawyers who are providing support and advice on how to use the case to try to detain and ultimately destroy Steven Donziger,” said Garbus. “The facts are emerging little by little, despite efforts by Judge Preska to deny us an evidentiary hearing where this scandal and her own role in it can come fully to light.”
Kaplan also faces a major misconduct complaint signed by 200 lawyers who allege he has abusively targeted Donziger for 10 years to help protect Chevron from having to pay the Ecuador judgment.
Two international teams of trial monitors who are watching the Donziger prosecution, one headed by U.S. Ambassador for War Crimes Stephen Rapp and a second that includes Harvard Law professor Charles Nesson, also have called out irregularities in the case and have requested that an unbiased judge be assigned to take over from Preska.