Legal Ethics

Booted from big enviro case, Covington blames ex-client for not protesting conflict earlier


A Minnesota judge last year agreed with 3M Co. that its longtime counsel, Covington & Burling, could not continue to represent the state in a big environmental lawsuit against the corporation.

But even if a legal ethics rule would otherwise have prohibited the representation, Covington should be allowed to continue with the contingency-fee case because 3M waited too long to protest the claimed conflict, the state solicitor general told the Minnesota Court of Appeals during oral arguments Thursday.

A Covington lawyer, Michael Sunder­meyer, also argued that a Hennepin County judge’s finding of a conflict was “plain error,” contending that his firm had not obtained any information while representing 3M that could “materially advance” the state’s case, the Star Tribune reports.

Attorney Michael Nilan, representing 3M, called the conflict blatant.

The judge who disqualified Covington pointed the finger at the law firm for not notifying 3M of the conflict and seeking permission to represent the Minnesota attorney general in the environmental case. However, it wasn’t until after some 16 months of litigation that 3M protested, which the state and Covington contend was too late.

Because higher-ups at 3M hadn’t been at the company when Covington was representing 3M in matters related to the state’s environmental suit, it was only when Covington began deposing in-house 3M lawyers on the same environmental issues on which the firm had once represented 3M that the conflict came to light, attorney William A. Brewer III of Bickel & Brewer told Corporate Counsel (sub. req.) earlier. His firm represented 3M in the disqualification matter.

In a separate case pursued in federal and state court, 3M has sued Covington for alleged breach of contract and breach of fiduciary duty. That suit seeks disgorgement of attorney fees and a court order protecting confidential information.

See also:

ABAJournal.com: “Minn. Judge Disqualifies Covington from Representing State In Big Enviro Case Against Ex-Client 3M”

ABAJournal.com: “Covington Appeals Law Firm’s Disqualification in Major Minn. Enviro Case Against Ex-Client 3M”

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