State, 3M Trade Barbs Over Law Firm in Pollution Case

State, 3M Trade Barbs Over Law Firm in Pollution Case

Minnesota’s solicitor general said 3M waited until “shortly after incriminating testimony” to file a motion to disqualify the state’s legal representation; 3M fired back, saying the firm has a conflict of interest.

The State of Minnesota is contesting 3M Company’s attempt to disqualify a law firm that currently represents the state in a lawsuit against 3M.

But lawyers for Maplewood-based 3M maintain that the firm, Washington, D.C.-based Covington & Burling, LLP, has “an inescapable conflict of interest that requires its disqualification.”

The state sued 3M in 2010 over alleged damage caused by the company’s disposal of chemicals called perfluorochemicals (PFCs).

3M then sued Covington late last month, saying that the the firm had worked with 3M for more than a decade on issues pertaining to its fluorochemical business, which involved PFCs.

3M alleged that Covington “breached its duties to 3M, by abandoning 3M, switching sides, and now representing the State of Minnesota against 3M on exactly the same issues about which Covington had earlier advised 3M.” The firm went from arguing that trace amounts of PFCs did not pose a risk to humans to arguing that exposure to those same chemicals is dangerous, 3M said.

Minnesota Solicitor General Alan Gilbert fired back in a Monday letter to District Court Judge Deborah Hedlund, who is overseeing the environmental case between the state and 3M. He said Covington has a 15-year history of working with the state—and he questioned why 3M waited 17 months after the original complaint was filed, and until more than 6 million documents had been exchanged, before filing its motion.

Gilbert also said that 3M’s motion was filed “shortly after recent incriminating testimony by 3M employees,” which indicated that 3M failed to report high levels of PFCs discharged into the Mississippi River and groundwater, failed to clean up chemicals at its Cottage Grove facility and others, continued making the chemicals after having announced that they were phased out, and “admitted 3M’s sole responsibility for disposing of PFC-containing waste at metro area landfills for decades.”

The disqualification of Covington would “severely prejudice the state, and the state may not even be able to continue prosecution of the case” without Covington, Gilbert said.

3M’s lawyers responded to Gilbert’s move by sending their own letter to the judge on Tuesday. They described the state’s letter as a “conspicuous effort to color this court’s view of the case with misleading descriptions of the evidence and incorrect recitations of the parties’ conduct.”

The lawyers said that the state’s witnesses have testified that the concentrations of PFCs in the Minnesota environment aren’t harmful to humans, and Covington has “an inescapable conflict of interest that requires its disqualification.”

“3M believes that Covington & Burling, and now the State of Minnesota, have a grotesquely distorted view of the fiduciary duties that are owed by lawyers to their clients,” William Brewer III, a partner at Dallas-based law firm Bickel & Brewer and lead counsel for 3M, said in an e-mailed statement.

Covington, meanwhile, said in a statement that it has “never served as 3M’s counsel on environmental issues.” The firm said that it worked with 3M on legal matters prior to 2005, but they were completed before the state approached the firm regarding the environmental damages suit. It said 3M has referenced advice that Covington provided to the company more than a decade ago regarding Food & Drug Administration approvals for consumer packaging, and there is a “fundamental difference” between that work and “our current work involving the long-term effects of waste disposal on state waterways.”

Covington claims that 3M’s complaint “has the situation completely backwards in suggesting that the firm dropped a long-time client to represent the state.”

3M is among Minnesota’s five largest public companies based on revenue, which totaled $29.6 billion in 2011.