This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).





State of Minnesota, by its Attorney General Lori Swanson, et al.,
Appellants (A12-1856),
Plaintiffs (A12-1867),

Covington & Burling, LLP,
Appellant (A12-1867),

City of Lake Elmo,

Metropolitan Council,
plaintiff/intervenor/counterclaim defendant,


3M Company,
defendant/counterclaim plaintiff,

Filed July 1, 2013

Affirmed; motion granted.

Peterson, Judge

Hennepin County District Court

File No. 27-CV-10-28862

Lori Swanson, Attorney General, Alethea M. Huyser, Beverly M. Conerton, Assistant Attorneys General; and

Alan I. Gilbert, Solicitor General, St. Paul, Minnesota (for appellant State of Minnesota)

John W. Lundquist, Thomas S. Fraser, Kevin C. Riach, Fredrickson & Byron, P.A., Minneapolis Minnesota; and

John K. Villa, Michael S. Sundermeyer (pro hac vice), Joseph M. Terry, Williams & Connolly, LLP, Washington, D.C. (for appellant Covington & Burling, LLP)

David K. Snyder, Johnson & Turner Attorneys at Law and Mediation Center, Forest Lake, Minnesota (for respondent City of Lake Elmo)

Daniel L. Abelson, St. Paul Minnesota; and

Linda E. Benfield, Paul Bargen, Catherine Basic, Laura Schulteis Kwaterski, Foley & Lardner, LLP, Milwaukee, Wisconsin; and

Dorothy Watson, Foley & Lardner, LLP, Orlando, Florida (for respondent Metropolitan Council)

Peter Gray, Michael T. Nilan, Amanda Cialkowski, Nilan Johnson Lewis, P.A., Minneapolis, Minnesota; and

Michael C. McCarthy, Maslon Edelman Borman & Brand, LLP, Minneapolis, Minnesota; and

William A. Brewer, III, Michael J. Collins, Robert W. Gifford, Bickel & Brewer, Dallas, Texas; and

Delmar R. Ehrich, Faegre & Benson LLP, Minneapolis, Minnesota (for respondent 3M Company)


As a preliminary matter, 3M moves to dismiss Covington’s appeal on the basis of a lack of standing. “Standing is a jurisdictional doctrine, and the lack of standing bars consideration of the claim by the court.” In re Custody of D.T.R., 796 N.W.2d 509, 512 (Minn. 2011). We review the issue of standing de novo, as a question of law. Id. A party acquires standing in one of two ways: standing is conferred on a party because of a statute or other legislative enactment, or a party has standing because of an injury-in-fact. Id. “An injury-in-fact is a concrete and particularized invasion of a legally protected interest.” Enright v. Lehmann, 735 N.W.2d 326, 329 (Minn. 2007).

Covington asserts two bases for standing: reputational injury and financial injury. Covington argues that the district court’s disqualification order impugns its professional reputation by finding that the law firm violated its professional responsibilities. Covington also argues that it invested heavily in the litigation and, under its agreement with the state, it will not be able to recover any of its expenditures because payment is contingent on a successful litigation outcome.

“This court applies a clearly erroneous standard of review to factual findings underlying an attorney disqualification, and we apply a de novo standard of review to the district court’s interpretations of rules of court, which present questions of law.” Niemi v. Girl Scouts of Minn. and Wis. Lakes and Pines, 768 N.W.2d 385, 387 (Minn. App. 2009) (citation omitted). The party seeking disqualification has the burden of proving that disqualification is merited. Am. Civil Liberties Union of Minn. v. Tarek ibn Ziyad Academy, 781 F. Supp. 2d 852, 855 (D. Minn. 2011); Olson v. Snap Prods., Inc., 183 F.R.D. 539, 542 (D. Minn. 1998).

Minn. R. Prof. Conduct 1.9(a) states:

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.

This rule provides the basis for the district court’s decision to disqualify Covington from representing the state. See Niemi, 768 N.W.2d at 387 (describing rule 1.9(a) as providing the legal basis for a disqualification motion). The question on appeal is whether the district court correctly interpreted the phrase “a substantially related matter in which that person’s interests are materially adverse to the interests of the former client.” Minn. R. Prof. Conduct 1.9(a).

We conclude that the district court did not err when it disqualified Covington from representing the state in the current litigation. We therefore affirm the district court’s disqualification order and remand this matter for further proceedings.

Affirmed; motion granted.

1 The supreme court has not formally adopted the comments; despite this, the comments are “extremely important” because they “will influence disciplinary and civil standards.” Supra at 15, 17.