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NOT FOR PUBLICATION IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX ELI C. MCKENZIE and SYBIL MCKENZIE CASE NO. SX-06-CV-653 Plaintiffs, ) ) ) ) ) ) v. ) HESS OIL VIRGIN ISLANDS (HOVIC); ) HOVENSA LLC., AMERADA HESS CORP., __) LITWIN CORPORATION, individually ) and as successor in interest to LITWIN- ) ACTION FOR DAMAGES PAN AMERICAN CORP., FLUOR ) ENTERPRISES INC., RIGGERS & ) ERECTOS INTERNATIONAL INC., ) RARITAN SUPPLY COMPANY< ) individually and as successor in ) interest to BRIDGE SUPPLY COMPANY, ) 3M aka MINNESOTA MINING AND ) MANUFACTURING COMPANY, CLEMCO s+?) INDUSTRIES, INC., INGERSOLL RAND ) CORP., and JOHN DOE DEFENDANTS, ) ) ) ) JURY TRIAL DEMANDED Defendants. MEMORANDUM OPINION THIS MATTER is before the Court on Defendants Hess Oil Virgin Islands, Hovensa., L.L.C. and Hess Corporation f/k/a Amerada Hess Corporations’ Motion to Disqualify Plaintiffs Counsel, Lee J. Rohn, Esq. (Hess Mot. Disqualify, filed Aug. 6, 2010.) Plaintiff filed an Opposition to the motion on August 27, 2010. (Pl.’s Opp., filed Aug. 27, 2010.) Defendants filed a Reply on September 10, 2010. (Def. Opp., filed Sept. 10, 2010.) For the following reasons, the Court will grant Defendant’s motion to disqualify Attorney Rohn as counsel for Plaintiff. FACTS AND PROCEDURAL HISTORY Plaintiffs Eli Charles McKenzie is a resident of St. Croix. He is married to Plaintiff Sybil McKenzie. He was employed at the Hess Oil Virgin Islands (“HOVIC”) oil refinery on McKenzie v. Hess Oil 2 SX-06-CV-653 MEMORANDUM OPINION ie 2 \ St. Croix from 1971 to 2000 as a sandblaster. Plaintiff was diagnosed with pulmonary silicosis in 2005. Plaintiff alleges that while working at the refinery, he was exposed to silica dusts and other harmful silica products. Plaintiff contends that as a result of this exposure he was injured and damaged through the sale of silica - containing products, the use of defective respiratory equipment (including masks, respirators, non - air fed hoods, and air -fed hoods) and the use of unsafe sandblasting equipment (including compressors, sand pots, hoses, nozzles and guns). Plaintiff Sybil McKenzie alleges a loss of consortium. On October 12, 2006 Attorney Theodore Huge of the law firm Motley Rice L.L.C. filed the Complaint in this matter against Defendants (“HOVIC”), Hovensa LLC, Amerada Hess Corporation and several other named Defendants. But on July 15, 2008, Attorney Elizabeth C. Ward, on behalf of the law firm of Motley Rice, L.L.C. filed a motion to withdraw as counsel for the Plaintiffs. (Mot. Withdraw, filed July 15, 2008)(Notice, filed July 28, 2008.)) Shortly afterward, the Court entered an order granting Motley Rice’s motion to withdraw as counsel for Plaintiffs. (Order, entered Sept. 23, 2008.) Motley Rice filed a Proof of Service that a copy of the order was served on the Plaintiffs. (Motley - Rice, Proof of Service, filed Oct. 27, 2008.) On July 22, 2010 Attorney Rohn filed a Notice of Appearance on behalf of the Plaintiffs. (Rohn, Not. Appearance, filed July 22, 2010.) Shortly afterward, Defendants filed the instant motion. STANDARD The Court is tasked with supervising the conduct of attorneys that appear before it and has inherent power to disqualify any attorney if it finds such action is warranted. McKenzie Construction v. St. Croix Storage Corp., 961 F. Supp. 857, 859 (D.V.I. 1997). In the Virgin Islands, the conduct of attorneys is guided by the American Bar Association Model Rules of Professional Conduct. See 4 V.1.C. § 32(f}(Supp. 2012); see also L.R.Ci. 83.2(a)(1); Super. Ct. R. 303. Defendants’ motion the Court for disqualification of Plaintiffs’ counsel pursuant to Rule 1.9 of the Model Rules. This rule governs an attorney’s duty to former clients; pertinent to this matter is 1.9 (a) which states A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing. McKenzie v. Hess Of al. [ SX-06-CV-653 MEMORANDUM OPINION Model R. Profi Conduct 1.9fa) “Duties to Former Clients’(2012). A lawyer’s duty of loyalty and confidentiality continues after the termination of the lawyer - client relationship. Model R. Prof.’| Conduct. 1.9, cmt. 1; see also Swidler and Berlin v. United States, 524 U.S. 399 (1998)). A lawyer is prohibited from representing anyone with interests adverse to those of a former client whom the lawyer represented in either the same or substantially related matter. Annot. Model R. Profl. Conduct 1.9, annot. at 156,“Overview of Rule 1.9” (6th ed. 2007). A breach of this duty may merit disqualification. “[D]isqualification ordinarily is the result of a finding that a disciplinary rule prohibits an attorney's appearance in a case...” United States v. Miller, 624 F.2d 1198, 1201 (3d. Cir. 1980). But disqualification is never automatic. /d. Courts must undertake a four - part analysis to determine if disqualification is warranted in a civil matter; (1) whether there was a lawyer - client relationship in the first place that has ceased; (2) whether the subsequent representation involves the same or a substantially related matter; (3) if the matters are either the same or substantially related, whether the interests of the subsequent clients are materially adverse to those of the former clients; and (4) whether the former clients consented. Annot. Model R. Prof. Conduct 1.9, annot. at 157,“ When Proposed Representation Would Be Disloyal to a Former Client.”; see Bluebeard’s Castle Inc., v. Delmar Marketing, 886 F. Supp. 1204, 1207-09 (DVI 1995); see also Brice v. Hess Oil Virgin Islands Corp., 769 F. Supp. 193, 195 (DVI 1990). The Court will review a variety of factors to determine if attorney disqualification is warranted under Model R. Prof. Conduct 1.9. This includes a determination as to whether the passage of time may render information obtained from a prior representation obsolete. Model R. Prof! Conduct 1.9, cmt 3. Further, general information obtained from an organizational client of their practices and policies does not ordinarily preclude subsequent representation. /d. The determination as to whether an attorney’s representation is substantially related to an attorney's current representation for purposes of Model Rule 1.9 is a fact-based inquiry. Pepper v. Little Switzerland, 2005 WL 1668916 at * 3 (D.V.I. 2005). The party motioning for disqualification must adduce evidence that there is a connection between the subject matters. (Pl.’s Opp., { 9.)(quoting Pepper v. Little Switz. McKenzie v. Hess Oil a), SX-06-CV-653 MEMORANDUM OPINION Holdings, Inc., 47 V.1. 527, 532 (D.V.1. 2005)). Finally Virgin Islands case law dictates that the Court consider certain policy factors when weighing attorney disqualification, these include; 1) the former client's interest in attorney loyalty; 2) the current client's interest in retaining chosen counsel; 3) the risk of prejudice to the current client; and 4) the protection cf the integrity of the proceedings and maintaining public confidence in the judicial system. In Re Corn Derivatives Anti-Trust Litigation, 748 F. 2d at 162; see also Brice v. Hess Oil, 769 F. Supp. at 195 (quotations omitted)). DISCUSSION Attorney Lee Rohn worked for the law firm of Bryant and Associates from 1985 until 1987, during that time she represented Defendants HOVIC in litigation. Defendants contend that Rohn was privy to confidential information obtained directly from HOVIC in ligation relating to the alleged inhalation of toxic particulates, fumes and substances. (Def. Mot. Disqualify, filed Aug. 6, 2010)(Aff. Britain H. Bryant, Esq.)) As such, Defendants argue that counsel violates Model Rule 1.9 by now representing a Plaintiff against HOVIC (and its other named entities) in a claim involving toxic substances. Defendants argue that Rohn should be disqualified from representing the Plaintiffs in this matter. Rohn opposes disqualification. Counsel argues that this matter is factually different from the asbestos litigation in the 1980’s as this matter involves products, work practices, worker safety policies and other aspects of refinery operations which came into existence after her departure from the Defendant's law firm. Rohn also contends that she acted in only a limited manner in HOVIC’s defense and directly under the supervision of lead counsel of attorney Bryant. (Aff. Rohn, filed Aug. 27, 2010.) Counsel also states that she was not privy to any confidences that would be applicable to the issues in this matter. (/d.) Rohn also counters that even if she was privy to certain confidences, the nearly twenty three years that have passed since she worked for the Defendant's law firm obviates or renders moot any information she may have been privy to as an associate at the Defendant's law firm and that discovery in this matter would reveal much if not all of the information she might have learned while working at Bryant and Associates. The Parties do not dispute that HOVIC is a former client of Rohn’s, that this representation has ceased and that HOVIC has not consented to Rohn’s representation of the Plaintiffs. However, because HOVIC’s interest in this matter are materially adverse to McKenzie v. Hess Oi} al. SX-06-CV-653 MEMORANDUM OPINION the Plaintiffs’ interest, HOVIC opposes Rohn’s representation of the Plaintiffs. Therefore, the question before the Court is, does Rohn’s current representation of the Plaintiffs violate Model Rule 1.9 because Rohn’s prior representation of HOVIC is substantially related to the current matter. Comment 3 to Rule 1.9 states that matters are substantially related if they involve the same transaction or legal dispute, or there is otherwise a substantial risk that confidential factual information such as would have normally acquired in the prior representation would materially advance the subsequent client's matter. Model R. Prof.’] Conduct. 1.9, cmt 3 The Defendants contend that this matter is substantially related to Rohn’s representation of HOVIC in the past because there is a substantial risk that confidential information she acquired in her prior representation of the Defendant could be used to materially advance the Plaintiffs’ claims against the Defendants in this matter. To assess this type of allegation, courts will consider the nature and extent of the lawyer's involvement with the first representation as well as the factual or legal similarities between the two matters. Annot. Model R. Prof], Conduct, annot. at 164 “Different Transactions or Legal Disputes.” Courts will balance this assessment against the precaution that an attorney who had recurrently handled a type of problem for a former client is not precluded from later representing another client in a factually distinct problem of that type even though the subsequent representation involves a position adverse to the prior client. Model R. Prof.'] Conduct. 1.9, cmt. 2. While it is unclear to the Court, how many of Defendant’s cases Rohn was involved with during her time at Bryant and Associates, Rohn herself avers that she was involved in at least three. 1 (Aff. Rohn, Pl’s Opp. J 2.) These include, Purjet v. Hess, 1986 U.S. DIST. LEXIS 15677, 22 V.I. 147 (D.V.I. 1986); Joseph v. Hovic, Civ. No. 1986/89, 671 F. Supp. 1043, 1987 U.S, DIST. LEXIS 15677, 23 V.I. 703 (D.V.I. 1987); and one matter dealing with the inhalation of toxic paint vapors, Belin v. Hovic, Civ. No. 1986/71 (D.V.1. 1986). (Aff. Rohn, Pl’s Opp. § 2.) 1 Rohn states that she only recalls working on two toxic cases for HOVIC. (Ex. 2 Aff. Rohn { 2.) “One asbestos case named Purjet v. Hess, Civ. No. 1984/284 and one paint inhalation case, Belin v. Hovic, Civ. No. 1986/71.” (/d.) Rohn later states that she was not lead counsel or primary counsel in the Benoit v. joseph case. Id. For purposes of clarification, Benoit v. foseph is actually Joseph v. Hovic, Civ. No. 1986/89, 671 F. Supp. 1043, 1987 U.S. DIST. LEXIS 15677, 23 V.1. 703 (D.V.I. 1987) and both Purjet and Joseph are asbestos related and Belin is a toxic paint vapor case. McKenzie v. Hess O}" al. SX-06-CV-653 MEMORANDUM OPINION Rohn urges the Court to find that the matters at issue are factually distinct and not substantially related. But after a review of the record herein, the Court cannot find that these matters are factually distinct. In Purjet v. Hess, the plaintiff brought suit on behalf of himself and his daughter, alleging that while working on site at the Hess refinery he was exposed to asbestos which caused health issues. Purjet v. Hess, 1986 U.S. DIST. LEXIS 15677, 22 V.I. 147 (D.V.I. 1986). In Joseph v. Hess Oil V.L, the plaintiff was an insulator for a Hess subcontractor from 1967 until 1986. He filed suit against Hess and other defendants alleging damages arising out of his exposure to asbestos. Joseph v. Hess Oil V.I., Civ. No. 1986/89, 671 F. Supp. 1043, 1987 U.S. DIST. LEXIS 15677, 23 V.I. 703 (D.V.I. 1987). The litigation in both these matters focused largely on the Defendant’s alleged liability for exposing the employee to toxic substances and a failure to provide adequate safety equipment. Similarly, Plaintiffs’ complaint is partially premised on his alleged exposure to silica dust and other toxic substances from 1971 until 2000. Aside from the general similarities, the Court notes that Plaintiff alleges that he sustained injuries within a time period which overlaps the time that the plaintiff in joseph claimed he was exposed to asbestos and other toxic substances while working at the Hess oil refinery from 1976 until 1986. Rohn contends that regardless of the fact that the present and prior representations involve exposure to toxic substances, this is a superficial connection that does not render the matters substantially related. She states that any prior representations are dissimilar because “ [p]laintiff is not simply claiming that Defendant HOVIC failed to warn based on its superior knowledge, but that Defendants HOVIC and/or Hovensa knowingly failed to provide the proper protective safety gear and equipment for the performance of the work performed by Plaintiff...” even though it controlled the areas on which the Plaintiff worked and controlled the issuance of safety equipment.”2 (Pl.’s Opp., J 12.) This argument fails. It is true that the claims alleged by the individual Plaintiffs in each matter are different. However, the Plaintiffs allegations, the allegations in Purjet and in Joseph, all intersect at the Defendant’s possible knowledge, liability or negligence surrounding toxic substances. ? In contrast, Plaintiff's complaint alleges that HOVIC, HOVENSA and Amerada Hess are liable for supplying chattel dangerous for intended use because“... [d]defendants failed to exercise reasonable care to make the sand, sandblasting equipment, respirators, hoods and dust masks safe...” for the use for which they supplied. (Compl. { 11.) | | | | McKenzie v. Hess Oj’”~ al. SX-06-CV-653 MEMORANDUM OPINION The Court turns to Rohn’s second argument, that her involvement with toxic tort actions while at Bryant and Associates was very limited, which would mitigate any risk posed by her prior representation of Hess. Comment 3 to Model Rule 1.9 notes that general knowledge of an organizational client’s policies and practices does not in itself merit disqualification. Annot. Model R. Prof.’ Conduct 1.9 cmt. 3. This is a fact - specific inquiry. Rohn claims that the nature and scope of her representation of the Defendants in Purjet v. Hess, Joseph v. Hovic, and Belin v. Hess was limited to supplementing discovery responses and substituting for lead counsel. (Aff. Rohn, Pl’s Opp. J 2.) She avers that any knowledge she received while representing HOVIC was disclosed during the discovery process. (/d.) Rohn also avers that while she may have done some peripheral work or simply signed documents in the absence of lead counsel on two other asbestos cases she does not recall performing any substantive work on them. (/d.) Finally, Rohn states that any information she may have been privy to would be revealed during the discovery process in this matter. To summarize, it appears that Rohn is contending that any knowledge she has of the Defendants garnered from her time at Bryant and Associates is peripheral at best or was made available to the opposing party during discovery and will likely be made available during the discovery process in this matter. And because her involvement was limited to general HOVIC policies and procedures, whether or not these matters are substantially related is irrelevant. In support of this argument, Rohn points to Brice v. Hess Oil, a case involving Rohn, the law firm of Bryant and Associates and the Hess / HOVIC defendants. Brice v. Hess Oil, 769 F. Supp. 193, 196 (1990). In Brice, the defendants filed a motion to disqualify Rohn from representing the plaintiff in a personal injury claim against it. Jd. On appeal, the district court affirmed the magistrate’s order denying the motion to disqualify Rohn. /d. The court found that the Defendants had provided no evidence that proved that Rohn was privy to confidential information. /d. After a review of Brice, the Court does not find that the district court’s reasoning in Brice applies in this matter. In Brice, the plaintiff's claim was based on allegations that Hess’ failure to provide safe equipment caused a large piece of equipment to fall over 300 feet and land on him. 7d. Clearly, an allegation regarding Hess’s liability related to providing safety equipment for construction work is different from possible liability related to providing safe equipment for use around a variety of toxic substances. Thus, the district court’s finding that Rohn’s work on toxic tort matters like Purjet or Joseph was McKenzie v. Hess Oi! ~— al. f SX-06-CV-653 : MEMORANDUM OPINION factually distinct from her representation in Brice is understandable. The same cannot be said here. Plaintiffs claims are premised on his alleged exposure to silica dust and other toxic substances much as the plaintiffs’ claims in Purjet and Joseph were premised on their exposure to asbestos and other toxic substances. Further, the Court finds that Rohn’s assertion that she was not privy to confidential information regarding HOVIC to be at odds with her assertions to the district court during litigation in Brice. During the course of litigation in Brice, Rohn sought to differentiate her role as counsel in a personal injury claim against the Defendants from her prior work on behalf of Defendants in toxic tort claims by noting that to date, she had “... refused cases such as paint inhalation and asbestos cases because they are substantially related to cases which she participated in the defense of HOVIC...” (Ex. F., Def. Reply to Pl.’s Opp, filed Sept. 10, 2010) (Peter v. Hovic, Civ. No. 408/1994(Terr. Ct. 1996)({citing to Rohn’s Opposition to Motion to Disqualify, filed Dec. 6, 1989))). Rohn’s statement gives rise to the strong inference that she was in fact privy to confidential information during her time of employment with Bryant and Associates. The Court readily concedes that some twenty four years later, it must be cautious in giving too much weight to a statement that Rohn made in 1989; only two years after her representation of Hess ended. The Model Rules acknowledge that the passage of time may diminish the risk of confidential information being disclosed to a minimum, if not make it obsolete. See also Annot. Model] R. Prof| Conduct 1.9, annot. at 165,"Different Transactions or Legal Dispute: Focus on Risk that Lawyer Possesses Useful Information. Rohn argues that even if she was privy to alleged confidential information, time has obviated any alleged confidential information she may have been privy to. She points the Court to Donowa v. Hovensa LLC, a matter once again involving the same attorneys and Defendants. (Pl.’s Ex. 1) Donowa v. Hovensa LLC, Civ. No. 99-82 (D.LV. 1999). In Donowa, the plaintiff was hired by a subcontractor of HOVIC to do sandblasting work. Jd. He was employed from 1990 to 1997. /d. In 1999, on behalf of the Plaintiff, Attorney Rohn filed a Complaint against the Defendants. /d. Plaintiff alleged that he sustained injuries to his lungs because he was given only a cloth respirator to wear. /d. Defendants filed a motion to disqualify Rohn from representing the plaintiff because of her past employment with Bryant and Associates from 1985 to 1987. /d. The district court denied the motion, finding that the amount of time between Rohn’s involvement with HOVIC and the dates that the McKenzie v. Hess Oi al. eat SX-06-CV-653 MEMORANDUM OPINION conduct complained of by the Plaintiff took place, weighed against her disqualification. Id. at ¥ 5. The court found that “[t]he instant case is even more removed in time. It was filed in 1999 and concerned employment that commenced in 1990.” /d. “Rohn’s . . earlier representation bears little resemblance to the present lawsuit in that the facts giving rise to the instant suit did not arise until three years after Rohn ceased her association with HOVIC" Jd. at J 4. Finally, the district court found that the fact that over the years HOVIC changed its procedures concerning the use of respiratory protective equipment to also weigh against Rohn’s disqualification. /d. Rohn contends that the facts underlying this matter should lead the Court to the same conclusion as the Donowa court. She states that “ [iJn the twenty three years since Attorney Rohn’s departure from Bryant's firm, Hess policies and procedures have changed, the scientific knowledge regarding respirants and associated diseases have changed. .. moreover...the policies and procedures employed by HOVIC relevant to this matter were also changed subsequent... counsel’s separation from Bryant and Associates thus superseding any supposed confidences.” (Pl.’s Opp. {| 13.)(Ex. 4 Hess Oil Virgin Islands Corp., Respirator Fit Policy)(stating that Hess’s respirator fit policies would become effective June 1, 1996.) It is true that the passage of time is a factor the Court should review in the context of a Model Rule 1.9 disqualification motion. However, the passage of time does not automatically weigh against disqualification. Instead courts must make a fact specific inquiry into whether “liJinformation acquired in a prior representation may have been rendered obsolete by the passage of time.” (emphasis added) Model R. Prof.’| Conduct. 1.9, cmt. 3. The Court has reviewed the facts as alleged in Plaintiffs’ complaint. It does not find that the passage of time weighs so heavily as to disfavor disqualification. First, Plaintiff Eli McKenzie worked at the Hess Oil Refinery on St. Croix from “approximately 1971 until 2000” as a sandblaster.” (Compl. J 2.) Plaintiff worked on the Defendant’s premises prior to Rohn’s employment with Bryant and Associates, during her employment and afterward. This is in direct contrast to Donowa. In Donowa, the plaintiff only worked at Hess from 1990 until 1997, well after Rohn’s association with Bryant ended and after Hess changed its respirator policies. The district court found it dispositive in Donowa that the “.. facts giving rise to the instant suit did not arise until three years after Rohn ceased her association ...” with the Defendants. In this matter Plaintiffs allegations are premised on the contention that it was during the course of his working life that Defendants’ actions McKenzie v. Hess O al. SX-06-CV-653 MEMORANDUM OPINION exposed him to harmful substances and caused him various injuries. Donowa at 4. (Pl.’s Compl. J 5.) More than half of Plaintiff Eli McKenzie’s work life took place prior to and during Rohn’s employment with Bryant and Associates. Further, Plaintiffs’ complaint is partly premised on the allegation that during his time working at Hess, “... the premise Defendants i.e. HOVIC, HOVENSA and Amerada Hess... “ failed to exercise reasonable care to make the sand, sandblasting equipment, respirators ...” safe for the uses for which they were supplied. (Compl. { 11.) Even if, as Rohn argues, Hess changed its respirator policies after she left and that she could not have been privy to them, she does not allege that Plaintiff, Eli McKenzie’s injuries were incurred only after her association with Bryant and Associates ended. Rather, any confidential information she may have been privy to, would still be relevant in regards to Plaintiffs allegations that he was harmed over the course of his entire time at Hess, from 1971 to 2000. Accordingly, the Court finds that the facts giving rise to this matter do not support Plaintiff's contention that the passage of time weighs against her disqualification or that her statement in Brice should not caution the Court as to whether or not Rohn was privy to confidential information. Further, there is no guarantee that discovery in this matter would make available all of the information that Rohn was privy to as an attorney at Bryant and Associates. After a review of the record herein, the Court finds that there is a substantial risk that possible confidential information regarding these issues was acquired by Rohn during her time with Bryant and Associates and could be used to materially advance Plaintiffs’ claims. The Court concludes that this matter and Purjet and foseph are substantially related, that Rohn’s involvement with HOVIC cases while employed at Bryant and Associates was not so limited as to minimize the risk of her exposure to confidential information and that in this particular matter, that time has not obviated the risk of confidential information being disclosed to a minimum that there is no guarantee that the information that Rohn was privy to would be revealed during the discovery process. The Court of Appeals for the Third Circuit has laid out several policy factors a court must review in deciding a motion to disqualify counsel; 1) the former client's interest in attorney loyalty; 2) the current client's interest in retaining [chosen counsel]; 3) the risk of prejudice to the current client; and 4) the court's interest in protecting the integrity of the proceedings and maintaining public confidence in the judicial system. /ilaraza v. McKenzie v. Hess Oilf al. SX-06-CV-653 MEMORANDUM OPINION Hovensa, L.L.C., Civ. No. 2008 - 0059, 2012 U.S. Dist. LEXIS 77402 * 2 (D.V.I. 2012) (quoting /nt'l Longshoremen's Ass'n, Local Union 1332 v. Int'l Longshoremen's Ass‘n, 909 F.Supp. 287, 293 (E.D. Pa. 1995)). Under the Model Rules, Hess has a continuing right to Rohn’s loyalty with respect to issues of confidentiality and conflicts of interest. Annot. Model R, Prof.’l. Conduct Rule 1.9, “Disqualification Motions” annot. at 167 (2007). Loyalty is one of the most essential elements of an attorney's relationship with a current or former client. I/laraza 2012 US. Dist. LEXIS 77402 at * 3. This factor weighs in favor of disqualification. The second factor, the current client’s interest in retaining chosen counsel, generally weighs in favor of the party who wishes to retain counsel of his choice. U.S. v. Miller, 624 F. 2d. 1198, 1203 (3d. Cir. 1980). But this is not an absolute right. /d. In this matter, Plaintiffs chose Attorney Rohn as their attorney in this matter after the Law Firm of Motley Rice L.L.C. withdrew as counsel. Plaintiff's choice is understandable as Rohn is a respected and successful member of the Virgin Islands legal community. The Court disfavors restricting a plaintiff's choice of counsel and finds that this factor weighs against disqualification. The third factor, prejudice to the plaintiff, is guided by a review of the types of prejudice Plaintiffs might suffer if Rohn was disqualified in this matter. Courts take into account various factors such as, what stage of discovery the parties are in and the difficulty regarding the time and expense of finding new counsel. /d. Discovery in this matter has not taken place yet which limits the prejudice to the Plaintiffs. If lengthy and time consuming discovery had commenced already this prejudice would weigh heavily against disqualification. Nevertheless, this matter has been pending for almost seven years and the Court is aware that finding new counsel will add some additional delay to the judicious determination of Plaintiffs claims. Further, the Court acknowledges that it will take both time and money for the Plaintiffs to find and retain new counsel. After weighing the third factor, prejudice to the plaintiff, the Court finds that this factor weighs against disqualification. Finally, the Court must review the fourth factor, the protection of the integrity of court proceedings and maintaining public confidence in the judicial system. This factor is integral to the Court’s determination in this matter ... “when a court finds a [ethical] violation of ... the public interest that may render disqualification appropriate may be at its zenith.” /d. In this matter, the Court finds that Rohn’s representation of the Plaintiffs in McKenzie v. Hess Oj’ al. SX-06-CV-653 MEMORANDUM OPINION this matter had violated Rule 1.9 of the Model Rules of Professional Conduct. “Courts are required to preserve a balance, delicate though it may be, between an individual's right to his own freely chosen counsel and the need to maintain the highest ethical standards of professional responsibility.” Gordon v. Bechtel Int'l, 2001 U.S. Dist. LEXIS 22432 at * 15 (D.V.I. 2001). If the Court were to find that Rohn should not be disqualified despite violating Model Rule 1.9, this decision strains the integrity of the Court’s judicial proceedings and diminishes the public confidence in the judicial system. Thus, the Court must find that this factor weighs in favor of disqualification. Ultimately, after a review of the policy factors, the Court finds that while there is prejudice to the Plaintiffs and a restriction of their right to the counsel of their choice, these factors cannot outweigh Rohn’s duty of loyalty to the Defendants or the Court’s duty to protect the public interest. CONCLUSION After a review of the record in this matter, the Model Rules of Professional Conduct and applicable case law the Court finds that Defendants Hess Oil Virgin Islands, Hovensa LLC and Hess Corporations f/k/a Amerada Hess Corporation’s Motion to Disqualify Plaintiff's counsel must be granted. An order consistent with this opinion will follow. DONE AND SO ORDERED this DARRVL DEAN DONOHUE, SR. Presiding Judge of the Superior Court