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Lago Agrio: New York Appellate Court Reverses Referee’s Decision on Collateral Estoppel – Letters Blogatory

Date: Feb 11, 2019

Back in November I noted a decision in the disciplinary case against Steven Donziger: the referee who was to decide the sanction Donziger will face had ruled that although Judge Kaplan’s findings of fact had had preclusive effect with respect to the question whether Donziger had violated the rules of professional conduct, the findings should not have preclusive effect with respect to the sanction. In other words, Donziger should be entitled to put on evidence to prove that Judge Kaplan’s findings were wrong at the hearing to be held on his sanction.

I opined that the referee’s decision was wrong, and I noted that the Grievance Committee had objected to it. While I don’t have a copy of the decision, I am told that the First Department, in a summary order, has reversed the referee. Thus the facts that Judge Kaplan found are the facts, or as I called them in a August 2018 post, the “facts′.” They may or may not be true, but they have been finally determined by a court.