A federal U.S. judge who ruled against the Canadian government last October in a billion-dollar cigarette-smuggling case against R.J. Reynolds Tobacco is a former member of an elite group of lawyers that directed the legal and political strategies of the tobacco industry.
Judge Lewis Kaplan represented Brown & Williamson Tobacco Corp. as a lawyer in the 1970s and 1980s, according to tobacco-litigation documents obtained by The Globe and Mail.
During that period, he was a member of the so-called Committee of Counsel that provided advice to tobacco lobbyists on how to temper government action on cigarette smuggling.
Last October, Judge Kaplan was part of a 2-1 majority ruling by the U.S. Second Circuit Court of Appeals which upheld a lower court's dismissal of Canada's cigarette-smuggling case against R.J. Reynolds.
Judge Kaplan did not disclose his former ties with the industry during the appeal, and U.S. legal experts said the circumstances of the case did not require him to do so. They pointed out that the judge's client was Brown & Williamson, not R.J. Reynolds.
Gordon Bourgard, senior counsel for the Canadian Justice Department, said yesterday that its legal team found out about Judge Kaplan's history only recently.
"Our reaction was first that we were confident that the court, including Judge Kaplan, approached the case impartially and professionally," Mr. Bourgard said. "And second, we have the case where it belongs now, before the U.S. Supreme Court."
The Supreme Court has not yet decided whether to hear the appeal.
Richard Daynard, a professor of law at Northeastern University in Boston, allowed that the judge is "technically off the hook" in that he never represented R.J. Reynolds, but said that "this is really a case that is clearly of benefit to the whole industry."
The Committee of Counsel "represented and essentially managed many functions for the whole industry. So in an important sense, [Judge Kaplan]was representing all of the companies, even though technically he was only representing Brown and Williamson," he said.
Andrew Mohan, Judge Kaplan's deputy clerk, said the judge "would not be available for comment."