Chevron Corporation v. Donziger et al

Filing 2565

ORDER: For the foregoing reasons, Mr. Frisch's motion to vacate (dkt. no. 157) is GRANTED, and trial is adjourned to November 3, 2020, at 10:00 a.m. in Courtroom 12A or such other courtroom as is designated. Counsel shall confer and inform the Court whether they wish to submit trial memoranda and/or proposed findings of fact and conclusions of law and, if so, when they propose to do so. SO ORDERED. ( Bench Trial set for 11/3/2020 at 10:00 AM in Courtroom 12A, 500 Pearl Street, New York, NY 10007 before Judge Lewis A. Kaplan.) (Signed by Judge Loretta A. Preska on 9/4/2020) (va)

Case 1:11-cv-00691-LAK-RWL Document 2565 Filed 09/04/20 Page 1 of 5

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,
-versus-

19-CR-561 (LAP)
11-CV-691 (LAP)

STEVEN DONZIGER,
ORDER
Defendant.
LORETTA A. PRESKA, SENIOR UNITED STATES DISTRICT JUDGE:
Before the Court is Mr. Frisch’s motion (dkt. no. 157)
asking the Court to vacate its order directing him to appear as
Mr. Donziger’s counsel at trial set to begin next Wednesday.
For the following reasons, Mr. Frisch’s motion is GRANTED, and
trial is continued to November 3.
I. Background
Over the past few weeks, Mr. Donziger and his counsel have
employed virtually every conceivable tactic to stop trial from
starting as long-scheduled on September 9.

First they moved for

a continuance, and, when the Court denied that motion, they
moved for reconsideration.

(See dkt. nos. 111, 124, 130, 132.)

Then at a Curcio hearing held after the Court declined to
reconsider the continuance order, Mr. Donziger refused to waive
potential conflicts of interest affecting two of his lawyers,
Richard Friedman and Zoe Littlepage, even though he had known of
the potential conflicts since Mr. Friedman and Ms. Littlepage

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first appeared in this case and had never voiced any objection,
even after the Government raised the issue in May.
145, 149.)1

(Dkt. nos.

Because Mr. Donziger refused to waive the potential

conflict, the Court disqualified Mr. Friedman and Ms. Littlepage
as counsel, which left Mr. Donziger with one lawyer, Martin
Garbus, who refuses to attend trial in person, and another
lawyer, Lauren Regan, who is purportedly not prepared to serve
as lead counsel.

(See, e.g., dkt. no. 149.)

In that context, the Court ordered that “if Mr. Garbus or
Ms. Regan decline to appear at trial or the circumstances of
their appearance are unacceptable to Mr. Donziger or they are
not in a position to act as lead counsel, Mr. Frisch will
represent Mr. Donziger at trial commencing on September 9.”
(Dkt. no. 149.)

Mr. Frisch had previously been Mr. Donziger’s

lead lawyer through most of this case but was permitted to
withdraw on July 4 on the express condition that his withdrawal
would “not affect the trial date.”

(Dkt. no. 99.)

On September

2, Mr. Frisch filed the motion at issue here arguing that he
cannot represent Mr. Donziger at trial on September 9 or on any

1
As previously noted, the Court took dim view of the motives
behind Mr. Donziger’s waiver decision and suspected it was yet
another instance of gamesmanship. (See dkt. no. 149 at 4-5.)
In light of the declaration Mr. Frisch submitted with the
instant motion, in which Mr. Frisch states that he himself “had
no reason to believe that Mr. Donziger would elect not to waive
Mr. Friedman’s potential conflict,” the Court’s view of Mr.
Donziger’s motives grows even dimmer. (See dkt. no. 157-2 ¶ 16.)

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later date because “fundamental disagreements” have damaged
their “relationship” and “ability to communicate” to a point
“beyond repair.”
II.

(Dkt. no. 157-2 ¶ 4.)

Discussion

That we find ourselves in this situation is deeply
disturbing, especially given the Court’s view that it is largely
the result of the machinations of Mr. Donziger and his legal
team (not including Mr. Frisch).

Regrettable as it is, the

Court concludes that it must grant Mr. Frisch’s motion and
postpone the upcoming trial.
Whether to grant a motion to withdraw as counsel, which is
how the Court construes Mr. Frisch’s motion, “falls to the sound
discretion of the trial court.”

Karimian v. Time Equities,

Inc., 2011 WL 1900092, at *2 (S.D.N.Y. May 11, 2011) (quoting
Stair v. Calhoun, 722 F. Supp. 2d 258, 264 (E.D.N.Y. 2010)).

It

is well-established that “[t]he existence of an irreconcilable
conflict between attorney and client” like those articulated in
Mr. Frisch’s motion papers "is a proper basis for the attorney
to cease representing his client.”

Id. (quoting United States

v. Lawrence Aviation Industries, No. 06 Civ. 4818, 2011 WL
601415, at *1 (E.D.N.Y. Feb. 11, 2011) (collecting cases).2

The

Court is mindful that in deciding a withdrawal motion, it must

2
Although Mr. Frisch offers to submit a supplemental
declaration with additional details regarding his differences
with Mr. Donziger (see letter from H. Protass dated Sept. 4,
2020), the Court finds that no additional information is needed.

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“also consider the posture of the case” and whether the
withdrawal will “disrupt[]” the proceedings.

See id. at *3.

There is no question that Mr. Frisch’s withdrawal will cause a
major disruption to this case given that none of Mr. Donziger’s
other lawyers is willing to lead the defense at trial starting
next week and a Government witness has already arrived in New
York to quarantine for two weeks.

Nevertheless, having weighed

the countervailing factors, the Court concludes that permitting
Mr. Frisch to withdraw so that Mr. Donziger can have a trial
lawyer with whom he is not at total loggerheads is the
appropriate course.
Mr. Donziger has identified Ronald L. Kuby as a lawyer who
can act as his lead counsel.

In a declaration dated August 25,

Mr. Kuby informed that he will be in a position to try this case
beginning on December 7, 2020.

(Dkt. no. 148-1.)

For the same

reasons set forth in the orders denying Mr. Donziger’s motions
for a continuance, the Court will not delay trial for the threemonth period Mr. Kuby requests.

Trial will begin on November 3,

which is 70 days from the date of Mr. Kuby’s declaration.

Cf.

18 U.S.C. § 3161(c) (requiring a criminal defendant’s trial to
begin within 70 days of his indictment or initial appearance).
III. Conclusion
For the foregoing reasons, Mr. Frisch’s motion to vacate
(dkt. no. 157) is GRANTED, and trial is adjourned to November 3,

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2020, at 10:00 a.m. in Courtroom 12A or such other courtroom as
is designated.

Counsel shall confer and inform the Court

whether they wish to submit trial memoranda and/or proposed
findings of fact and conclusions of law and, if so, when they
propose to do so.
SO ORDERED.
Dated:

September 4, 2020
New York, New York

____________________________
LORETTA A. PRESKA, U.S.D.J.

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