Chevron Corp. v. Donziger and Paying the Piper

• Jurisdiction: United States,Federal,California
• Citation: Vol. 34 No. 3
• Publication year: 2021
• Author: By David M. Majchrzak
• topic: Environmental Law,Corporate / Commercial

Chevron Corp. v. Donziger and Paying the Piper

By David M. Majchrzak

David M. Majchrzak is an ethicist, civil litigator, and certified specialist by the State Bar of California in legal malpractice law. He is Deputy General Counsel and a shareholder of Klinedinst PC in San Diego. He is a member of the ABA Standing Committee on Ethics and Professional Responsibility, the immediate past co-chair of the California Lawyers Association Ethics Committee, and president-elect of the San Diego County Bar Association.

As a college freshman, I was invited to participate in a then-new program, called thematic option, where general education requirements would be fulfilled. There, we had a class size of 16 students, giving a pretty solid teacher to student ratio in a world class university. Although I took something away from all my classes, I remember those more than the others not just because of the intimate environment, but because of the philosophical discussions. Little did I know that I would revisit much of the moral philosophy we discussed roughly 30 years later when I watched the situation comedy, The Good Place. In both settings — my first exposure to a healthy dose of the Socratic method, and passively watching Ted Danson play a demon — the participants discussed what should determine whether particular conduct was moral.

Though, of course, there are many theories, two often dominate the conversation. Consequentialism, often associated with Jeremy Bentham and John Stuart Mill, takes the Monday morning quarterback view of actions. Looking backwards, it considers the result in assessing the morality (i.e., the ends justifying or condemning the means). At the other end of the spectrum is the deontological approach that Immanuel Kant, among others, advocated, where an action is evaluated based on whether it fulfilled a duty. That is, conduct is moral so long as it follows the rules of the way we are supposed to act since results — good or bad — sometimes may occur through fortune or happenstance, rather than as a direct result of the action.

To say that one or the other applies to lawyers' professional responsibilities would be a mistake. Ask a lawyer involved in the discipline process with any regularity and they will quickly let you know that, in determining whether there was any violation of the Rules of Professional Conduct or the State Bar Act, there is no consideration for whether any harm was done. Clearly, such an approach is deontological. But the level...