Disqualification Regarding a Former Client – Rules 1.9, 1.7.
A. DQ. By
Order dated October 11, 2012, Hennepin County Judge Robert Blaeser disqualified Covington and Burling LLP ("C&B") from representing the State of Minnesota in litigation, alleging that 3M released hazardous substances, especially fluorochemicals ("FCs"), into groundwater. Court File No. 27CV10-28862. The
Order found that C&B violated Rule 1.9(a), by representing the State adverse to 3M on a matter that is “substantially related” to C&B’s prior representation of 3M. The Order is too complicated for detailed summary here, but two aspects of the findings warrant comment: (1) a law firm helping to cause its own disqualification; and (2) the puzzling absence of a conclusion that C&B also violated the current client conflict rule. The court’s findings are taken as factual here.
B. C&B’s 3M Work. From 1992 to 2006, C&B represented 3M regarding fluorochemicals and perfluorochemicals (aka “FCs” or “PFCs.” C&B was involved both with 3M’s FC “Working Group” and with 3M’s “FC Legal Team.” The court found that these representations gave C&B broad access to 3M FC information and personnel working on FCs. The court rejected C&B’s claim that it had limited involvement in FC matters -- relating only to FDA wrapping material issues, and not relating to environmental issues.
C. C&B’s Discovery Seeks Its Own Work Product. A law firm sometimes helps prove the case for its own disqualification. The court found that C&B made discovery requests that, in effect, called for 3M to produce documents and information that C&B itself had worked on. Disqualification was found to be warranted because, “Covington has even gone so far to seek discovery on the very issues on which it previously counseled 3M.” Order at 13. Although not cited in the order, there is precedent for this conclusion, discussed in
Minnesota Legal Ethics, viz.
EOP-Nicollet Mall, L.L.C. v. County of Hennepin, Nos. 29743, 28793, 28457, 2003 WL 22827677
(Minn. Tax Ct. Nov. 13, 2003). Somewhat similarly, another case cited in the treatise ordered disqualification where the disqualified lawyer had, before a disqualification motion was filed, himself argued that the subjects in question were substantially related.
Gifford v. Target Corp., 723 F. Supp. 2d 1110 (D. Minn. 2010).
D. Was 3M a Current Client? “Directly Adverse” Conflicts – Rule 1.7(a)(1) The order is puzzling in one regard. It dismisses as “unpersuasive” 3M’s argument that it was a current client of C&B at times relevant to conflicts and disqualification. The chronology stated by the court, however, strongly suggests C&B jumped the gun, by planning litigation against 3M while 3M was a current client. As of November 9, 2010, C&B and the State were discussing possible State claims against 3M. In December 2010, C&B twice communicated to 3M regarding termination of C&B’s 3M engagement. On December 22, 2010, 3M, as requested, terminated the representation. On December 30, 2010, the State, through C&B, filed a 30 page complaint against 3M. From this chronology, it appears that during November and December, C&B was at work on a claim directly adverse to a current client, 3M. Rule 1.7(a)(1) defines such work as a conflict. It is not clear why the court did not discern a conflict on the facts it stated.
E. Disqualification Effect. At the time of the disqualification order, C&B had been representing the State for nearly two years in the litigation, under a contingent fee agreement. The State was given 180 days to secure new counsel. The State and C&B have filed separate Notices of Appeal.
F. Disclosure. The author is Of Counsel to Dorsey & Whitney LLP. Dorsey represents 3M on various matters, but other counsel represent 3M on this matter. The author has had no involvement in the C&B disqualification matter or related matters.
Sex with Clients – Rule 1.8(j)
A. Disciplines.
Minnesota Legal Ethics notes that, in recent years, lawyers who violated Rule 1.8(j), by having sex with clients, were often disciplined severely. However, there are some mild disciplines in certain circumstances, e.g., “where the relationship was an isolated incident, and little actual harm occurred, private admonitions have been issued.” Robin J. Crabb,
The Prohibition on Sex With a Client, MINN. LAW., Oct. 1, 2012 at 10. The article also explains the limited circumstances in which sex with clients does not violate a Rule of Professional Conduct.
B. Pending Case. A pending public discipline case involves a lawyer’s defense that a sexual relationship with a client was not prohibited by Rule 1.8(j), because the sexual relationship preceded the attorney-client relationship. Such a continued relationship would be permitted under Rule 1.8(j). However, the petition alleges: (1) sex preceded the professional relationship; and (2) regardless of sequence, the sexual relationship materially limited the attorney-client relationship; and (3) the lawyer charged legal fees for times when the parties were engaged in sexual conduct. The case is scheduled for trial before a Minnesota Supreme Court referee this month.
In re Lowe, File No. A12-1159. Referee findings and conclusions are expect by year’s end.