two-year delay in bringing the motion, there was no prejudice by
the delay. The court, however, stated in dicta that "the
application of the laches doctrine might be appropriate in an
extraordinary case where it is clear that the disqualification
was inspired by dilatory tactics." 862 F. Supp. at 901.
While ordinarily a delay of two months in bringing a
disqualification motion would not result in prejudice, as noted,
above, it has here because of the expedited proceedings. Counsel
for both sides have compressed the usual time periods and
conducted a motion for a temporary restraining order and
expedited discovery and are in the midst of preparing for a
preliminary injunction hearing in about two months. Brown &
Williamson has invested substantial resources in C & B's
accumulation of knowledge and its preparation of the case in the
two months before the issue of disqualification was raised and
during the briefing period.
This accelerated process, in turn, was the result of the
State's request for expedited proceedings after issuance of the
TRO. The State was understandably reluctant to consent to
extension of the TRO and did so only to permit the minimum time
for trial preparation. However, that decision is not without
consequences. The State argues in the present motion that C &
B's conflict is apparent and disqualification clearly required.
Accepting that position as true in this part of the analysis,
however, it is equally clear that the State must have made a
tactical decision at the outset not to seek what it regards as
obviously-required disqualification (or at least raise the
issue) and instead chose to pursue expedited proceedings. Having
made that choice, it must accept the consequence now and
acknowledge the prejudice to Brown & Williamson of permitting C
& B to participate in the action virtually until the eve of
trial before raising the issue of disqualification.
While I agree that under the appropriate circumstances laches
could bar a motion to disqualify, on the record before me, I do
not find that the two-month delay in bringing the instant motion
to disqualify, by itself, is sufficient to deny the motion.
However, consideration of this factor confirms the conclusion
V. TACTICAL ADVANTAGE
Finally, I find a hint of tactical maneuvering in the filing
of this motion. The State has never moved to disqualify C & B in
any other case, including when C & B represented the tobacco
manufacturers and the Tobacco Institute against the State
Attorney General. Additionally, the State had notice of C & B's
representation of Brown & Williamson in October 2000, yet, as
noted above, chose to pursue expedited proceedings at the outset
and only informed C & B of its intent to file the motion to
disqualify in December 2000, after the TRO had been issued and
after plaintiffs moved to depose two attorneys in the Governor's
counsel's office, a move which, the State informed C & B on more
than one occasion, caused "significant displeasure." Finally,
the State has failed to show any risk of trial taint, while, at
the same time, there would be great prejudice to Brown &
Williamson if it was required to seek new counsel at this late
stage of the action.
While I do not find that the motion to disqualify was inspired
solely by tactical motives, I cannot say that the State is saved
from such a conclusion by its arguments that it only recently
discovered that there may be a conflict between C & B's
representation of Brown & Williamson and of the State. (Tr. at
69, lines 20-25 to Tr. at 70, lines 1-21). See Chemical Bank,
1994 WL 141951, at *19 ("the absence of
any real risk of trial taint or prejudice to Chemical compels me
to find that Chemical has pressed this motion solely to obtain a
tactical advantage"). Again, while this factor alone is
insufficient to bar the motion, its consideration also leads to
the conclusion already reached.
As the court stated in Aerojet:
Although not determinative, it is significant that
there is absolutely no substantive nexus between the
two lawsuits. Nor is there any real potential for the
disclosure of confidential information,
notwithstanding the [government's] involvement in
each lawsuit. In essence, [the firm] has not
compromised its duty of undivided loyalty to each
claimant here or the State in the [other] action.
Given the multitudinous nature of the State's
activities, even the appearance of impropriety seems
de minimis here. . . . Moreover, to disqualify [the
firm] after extensive involvement in this lawsuit
. . . would prove patently unfair to both the law
firm and its client. The circumstances simply do not
warrant such drastic relief.
Aerojet, 530 N.Y.S.2d at 626.
Accordingly, for the reasons set forth above, defendants'
motion to disqualify the law firm of Covington and Burling as
counsel for plaintiffs Brown & Williamson and BWTDirect is