Covington & Burling Law Firm Gets Disqualified For Violating Duty To 3M

Lawyers often get a bad rap for being greedy amoral people who care more about securing their next paying client rather than protecting their current and past ones.  Nowadays this reputation is mostly undeserved.  However, it’s all the more unfortunate when stories like this one emerge to prove that bad apples still exist.

Legal powerhouse Covington & Burling LLP was recently disqualified from a case by a Minnesota judge.  Covington was representing Minnesota at the behest of the state’s attorney general in an environmental lawsuit again 3M Co., as in the company that makes the majority of your company’s office supplies.

In big cases like these, it’s not unheard of for a government prosecutor’s office to feel overwhelmed and turn to the private sector for help.  This case is no different.  So what’s the problem with a major law firm helping to prosecute a major corporation?  Nothing.  Except when the major law firm used to represent the major corporation currently being prosecuted.

Apparently 3M was a former client of Covington in the past.  But somehow the big firm lawyers failed to inform the court of this pertinent fact.  And that’s exactly why the judge decided to kick Covington to the curb.

You can probably guess the problems that could arise in a situation like this.  Imagine you’re in high school and you have a friend that you confide all your deepest and darkest secrets to.  Now imagine if you had a falling out with this friend who then suddenly buddies up with your sworn enemy.  What do you think the chances are that the whole school will know you wet yourself in terror whenever you see donuts?  Wait, hold that thought, the entire student body is clearing out every bakery in town.

And that’s why attorneys aren’t supposed to go against their old clients.

You may also be surprised to learn that there are actually ethical rules against this sort of behavior, too.  Every state’s bar association has their own version of lawyer conduct rules, but they all generally fall in line with the American Bar Association’s Model Rules of Professional Responsibility.  Basically, it’s a code of conduct that tells lawyers how to handle various professional moral dilemmas.  And chief among these rules is protecting your client’s confidences and secrets, which Covington allegedly failed to do by taking arms against its old client, 3M.

Like doctors, lawyers are entrusted with highly sensitive information from their clients.  It’s a necessity in order for the attorney to give the best representation possible.  The problem is that this same information, if misused, could be turned against those very same clients.  To prevent this, Courts and bar associations impose a duty on attorneys to protect their clients’ secrets.  And in the case of a conflict of interest between representing a new client against an old client, most state rules of professional responsibility only allow the lawyer to do so if they get an informed written consent from their old client first.  Some state bar associations go even further by requiring consent from both parties and the court.  And even still, a lawyer can be disqualified if the information they possess about the old client is directly relevant to the heart of the new lawsuit against them.

Unfortunately for Covington, the judge found the firm failed on all accounts.  The court held Covington “exhibited a conscious disregard for its duties of confidentiality, candor, full disclosure, and loyalty to 3M by failing to raise its conflicts” stemming from its previous representation.  Short of being disbarred, it doesn’t get more embarrassing than that for a renowned international law firm.

In practice, conflicts like these can lead to all sorts of problems for the new client, too.  Not only do they have to find a new lawyer, but sometimes their case can even be dismissed.

As for 3M, the company can breathe a temporary sigh of relief as the prosecution regroups.  But as horror movies have taught us, one must always be wary of the proverbial hand emerging from the lake.