Tuesday, May 13, 2014

Minnesota Supreme Court has remanded the order disqualifying Covington & Burling in a case I have been writing about for almost 2 years

Back in August of 2012 I first reported on a complaint filed by 3M Corp. against the law firm Covington & Burling alleging that the firm had dropped 3M like a hot potato in order to represent the state of Minnesota in a case against 3M.  Covington argued that it was no longer representing 3M by the time it agreed to represent the state.  I posted my comments on that claim here

Meanwhile, aside from that lawsuit, 3M moved to disqualify Covington in the case in which it was representing the state against 3M.  I posted my comments on that here.  Although 3M claimed a violation of the hot potato doctrine as the basis for its motion, the court decided it on different grounds.  The court agreed with Covington that 3M was a past client, rather than a current one, thus making the hot potato doctrine irrelvant, but agreed with 3M that Covington should be disqualified for violating the rule against conflicts of interest as they relate to former clients (rule 1.9).   I commented on the disqualification order here.

Covington and its client then appealed the disqualification order and I wrote my thoughts on their arguments here.  I argued that once the court finds that the past representation of 3M and the current representation of the state against 3M are substantially related, Covington's arguments are relatively weak. 

In July 2013, the court of appeals affirmed the disqualification order, but Covington then appealed to the Minnesota Supreme Court.  For my post on this go here, which has a link to the opinion itself.

Now, almost two years after the affair began, the Minnesota Supreme Court has reversed and remanded the case holding that the lower court did not make enough findings to support its conclusion that the cases were substantially related.  This does not mean that Covington will not be disqualified; only that the court needs to make further findings to determine if it is justified to disqualify the firm.  However, the opinion suggests some of the factors it things should be considered and, in my opinion - for the reasons I argued in my post on the appeal to the appellate court - those factors will support Covington's position more than 3M's motion.

The Legal Profession blog has a note on the decision here.  Thanks to the Legal Ethics Forum, you can download the opinion here.