Court shows little sympathy for Covington, but also little for 3M

Only an idiot predicts the outcome of a case based on oral argument at the Supreme Court. Having said that, the state of Minnesota and the Covington law firm had to be a little downhearted after arguments on whether the state’s law firm should be disqualified for a conflict of interest. See, “Covington & Burling can’t represent A.G. in case against 3M, C of A says.”  The state is suing 3M using a law firm, Covington, that formerly represented 3M.

Fewer than two minutes into the argument, Justice Wilhelmina Wright asked, “On the issue of the violation of Rule 1.9, what is the evidence in the record as to the kind of conflict wall that was created to protect attorney-client privileged documents from Covington?”  The state replied that protective screens were enacted as soon as the conflict issue was raised by 3M.  The state’s solicitor general, Alan Gilbert said that the public policy demanded that 3M be deemed to have waived its conflict argument but Chief Justice Lorie Gildea said, “If we’re going to talk about public policy, lawyers have a higher duty.  They just do. The notion that a lawyer can hoodwink a client in this way and if the client isn’t diligent enough in finding out that the lawyer had violated the rules – you’re putting so much onus on the client.”

When attorney Michael Nilan took the podium, he was questioned about the trial court’s discretion to refuse to disqualify the law firm or find that waiver had occurred.  He argued that disqualification is mandatory and if not, the trial court did exercise discretion and removed the firm.

The court was interested in the 15 months it took 3M to figure out there was a conflict of interest.  3M was not given correct information about its prior relationship with Covington and thus it could not intentionally waive a known right, Nilan said. When it did know the full details, it moved promptly to remove Covington from representing the state. But 3M knew when the lawsuit was filed, responded Justice Alan Page, and Nilan replied that’s not what the District Court found. “There are very big moving parts to 3M,” Nilan said. “The court can’t establish a precedent that the client is responsible.”

Source: http://minnlawyer.com/minnlawyerblog/2014/01/13/court-shows-little-sympathy-for-covington-but-also-little-for-3m/

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