ARE SANCTIONS THE NEW SLAPP? ANALYZING OIL COMPANIES' WEAPONIZATION OF ETHICS ACCUSATIONS AGAINST HUMAN RIGHTS ATTORNEYS.

• Author: Marcoux, Shannon
• Position: Strategic Lawsuits Against Public Participation

1. INTRODUCTION 218 II. SLAPP SUITS AS A TRIED-AND-TRUE CORPORATE TACTIC TO SUPPRESS HUMAN RIGHTS SUITS 219 III. THE DONZIGER CASE AND THE RICO REVOLUTION 220 IV. ATTACKS ON ETHICS: DISCIPLINARY PROCEEDINGS, DISBARMENT, AND SANCTIONS AS NEW TOOLS IN THE CORPORATE TOOLBOX 223 V. VULNERABILITY TO VIOLATIONS AND ACCUSATIONS: THE UNIQUE POSITION OF HUMAN RIGHTS AND ENVIRONMENTAL LAWYERS 229 VI. SITUATING ETHICAL ATTACKS ON ENVIRONMENTAL LAWYERS IN THE LARGER HISTORY OF WEAPONIZING BAR PROCEDURES 232 VII. Is THERE A MORE ETHICAL AND RIGHTS-RESPECTING PATH FORWARD? 233 VIII. CONCLUSION 235 I. INTRODUCTION

   "We're going to fight this until hell freezes over. And then we'll fight it out on the ice."

   --(Former) Chevron Spokesman Donald Campbell, 2009 (1)

   As the above quotation suggests, Chevron--whom an Ecuadorian court ordered to pay over $9 billion for dumping oil and sludge in the Ecuadorian Amazon--has adopted aggressive and novel litigation tactics in its quest to evade liability for its actions and its mission to make an example out of the Harvard-educated human rights lawyer that obtained the judgment against the oil company. (2) Chevron's attorneys have utilized tools that run the gambit from corporate mainstays to never-before-seen uses of legal tools to achieve these goals. This Article, focusing primarily on the tactics that attorneys for multinational oil companies like Chevron use against human rights lawyers (3) and activists, tracks key developments in the ever-evolving corporate playbook. Note that this Article does not seek to take a position on the merits of the cases and disciplinary proceedings discussed; rather, it seeks to highlight the increasingly aggressive and punitive nature of the tactics themselves. Beginning with strategic lawsuits against public participation (SLAPP) suits, moving to racketeer influenced and corrupt organizations (RICO) suits, and then ultimately discussing disciplinary proceedings and other accusations of ethics violations, this Article asks whether disciplinary attacks on attorneys have become the new SLAPP suits (or more accurately, an equally effective tool, as SLAPP suits are still on the rise). This Article then highlights a few of the current challenges that render those working on human rights issues, especially those working on environmental issues, vulnerable to having their ethics and professional conduct attacked. These vulnerabilities are then connected to the longstanding history of the weaponization of bar admission and disciplinary actions against lawyers from marginalized groups and progressive lawyers seen as deviants within the legal profession. Finally, this Article closes with modest suggestions for how to stop, or at least slow, the troublesome trend of corporate attorneys wielding ethics complaints as a weapon against human rights lawyers.

2. SLAPP SUITS AS A TRIED-AND-TRUE CORPORATE TACTIC TO SUPPRESS HUMAN RIGHTS SUITS

   SLAPP suits, conceptualized in the 1970s and coined as a term in 1989, (4) have long proven an effective tool to silence dissent--particularly in the environmental law context. (5) For example, Robert Murray, head of the United States' largest privately-owned coal company, has been bringing SLAPP suits against activists and journalists for over two decades, including a high-profile defamation suit against comedian John Oliver in 2017. (6) Though many SLAPP suits are ultimately dismissed, they still achieve their goals of silencing, harassing, and obstructing opponents. (7) In 2017, a Georgia waste company called Green Group Holdings sued activists for defamation associated with their protest of the company's dumping of hazardous coal ash in a residential landfill. (8) All of the defendants--whom the company was suing for $30 million--were residents of Uniontown, Alabama, which the American Civil Liberties Union (ACLU) describes as a poor, predominantly Black town with a median annual income of around $8,000. (9) In another instance, a 78-year-old Florida woman named Maggy Hurchalla sent an email to her county commissioners urging them to back out of a water deal with Lake Point Restoration, a company that operates limestone mines in Martin County, Florida. (10) In response, the company sued Hurchalla for interfering with a contract, and Hurchalla is now forced to pay the company $4.4 million. (11)

   Only twenty-nine states have an anti-SLAPP law on the books, and though the scope of these laws varies greatly, most offer inadequate protection. (12) Important in the transnational litigation context, there is no federal anti-SLAPP statute. (13) Corporations bringing SLAPP suits in federal court to avoid state anti-SLAPP laws can bring federal causes of action or assert choice of law challenges where the federal court is only sitting in diversity. (14)

3. THE DONZIGER CASE AND THE RICO REVOLUTION

   Though SLAPP suits remain a corporate bullying mainstay, corporate lawyers have diversified their tactics. The Racketeer Influenced and Corrupt Organizations Act (15) (RICO)--whose civil provisions were largely ignored throughout the 1970s and 1980s--gained immense popularity among corporate litigants in the early 2000s. (16) From 2001 to 2006 alone, plaintiffs filed an average of 759 private civil RICO claims each year. (17) Since its inception, critics of RICO have criticized its vague language as too easily misconstrued. (18) Eventually, certain corporations realized they could weaponize RICO against human rights activists.

   Seemingly the first and most widely publicized instance of a RICO suit was the suit Chevron filed against human rights attorney Steven Donziger. The decades-long and still ongoing legal battle began when, from 1972 to 1990, Texaco (which later merged with Chevron) drilled in the Oriente area of the Ecuadorian Amazon and (per its own admission) dumped approximately 15.834 billion gallons of toxic muds and other waste into Amazonian waterways (roughly three million gallons daily). (19) Ecuadorian plaintiffs pursued an Alien Tort Claims Act (20) (ATCA) case in the United States in 1994, but the case was dismissed in 2001 on the grounds of international comity and forum non conveniens with the condition that Texaco must submit to Ecuadorian jurisdiction. (21) After eight years of discovery, evidence collection, and litigation, an Ecuadorian judge issued an $8,646 billion judgment against Chevron (who had merged with Texaco by this point)--awarding an additional $8,646 billion in punitive damages, which the Ecuadorian National Court of Justice ultimately struck down after finding punitive damages unavailable under Ecuadorian law. (22)

   Neither the Ecuadorian trial court, the appellate court, nor the National Court of Justice found issues of fraud, bribery, or evidence tampering in the case, yet Chevron--two weeks before the National Court of Justice issued its decision--filed a RICO case (23) in federal court in the Southern District of New York, the same district from which the initial ATCA claim was dismissed in 2001. (24) Chevron alleged that Donziger bribed a judge and ghostwrote the Ecuadorian trial court opinion, among other allegations. (25) Chevron dropped its initial claims for damages in order to deprive Donziger of a jury trial and sought only equitable relief under RICO (there is a circuit split on the availability of equitable relief under RICO). (26) Judge Kaplan found Donziger to have committed extortion, wire fraud, money laundering, obstruction of justice, and witness tampering under RICO; enjoined the enforcement of the Ecuadorian judgment; and established a constructive trust to divert any attorney's fees or future benefits of the Ecuadorian litigation from Donziger to Chevron. (27)

   As one criminal defense attorney indicated in an interview,

   [RICO] was meant to be used against the mob. The danger about a case like this is that it could send a message to a lawyer who wants to take up a cause for an underdog that Big Brother, the big corporate entity, is going to start coming after you for criminal conduct. (28) That is precisely what happened. Chevron's successful RICO suit against Donziger, an environmental advocate and human rights lawyer, started a worrisome trend. In 2016, Resolute Forest Products, a Canadian logging company, filed a SLAPP suit, including defamation allegations and RICO charges, against Greenpeace in U.S. federal district court in Georgia. (29) The case was then transferred to federal court in northern California (30) and largely dismissed with the exception of a single defamation claim allowed to move forward. (31) Represented by the same law firm that represented Resolute Forest Products, Energy Transfer Partners, L.P. brought a SLAPP suit and RICO charges against lawyers and activists opposing the Dakota Access Pipeline in 2017. (32) Professor Michael Gerrard described the lawsuit as "perhaps the most aggressive SLAPP-type suit that [he had] ever seen"--"[t]he paper practically bursts into flames in your hands." (33) A federal court dismissed these charges in 2019. (34)

   Chevron engaged over 2,000 attorneys from sixty different law firms and spent over $2 billion in its quest to ensure that the Ecuadorian judgment was not enforced. (35) "Chevron has... sued or threatened to sue anyone" and everyone who has aided the Ecuadorian plaintiffs, including journalists and a documentary filmmaker. (36) By the time it filed its RICO suit in 2011, as part of its scorched earth litigation strategy, Chevron had issued twenty-five requests to obtain discovery from at least thirty different parties in more than a dozen federal courts throughout the United States--a tactic the Third Circuit called "unique in the annals of American judicial history." (37) In the RICO case, Donziger's small legal team processed an over 2,000-page privilege log and identified 8,652 privileged documents, but because they missed the court's filing deadline, Donziger forfeited every privilege claim. (38) Chevron...