Black bowler hat (
by Steve Timmer
Dec 12, 2015, 2:00 PM

What color is your hat?

Please see the update . . .

In many specialties in the practice of law, lawyers and law firms are divided into two camps. There are plaintiffs’ personal injury firms, and there are insurance defense firms, for example. And there are lawyers who represents environmental non-profits and lawyers who represent extractive industries and polluters.

Crossover from one side to the other is rare because, among other things, it’s bad for business. You’ll get a rep. If you make your living defending polluters, it is highly unlikely that you’ll accept a brief defending environmental regulation.

It just isn’t done. It looks bad to existing clients, who will wonder where your loyalties lie, and it will scare away prospects.

Which brings us to the Bleak House characters Crowell & Moring, the law firm hired by the State of Minnesota to defend the state’s decision on the PolyMet mine, whatever that decision is. Whatever that decision is. Right.

Let’s look at some of C&M’s clients. National Mining Association? Check! Massey Energy (Don Blankenship’s company)? Check! Sierra Club? Well, I don’t see it anywhere.

In fact, the firm, which is based in Washington, D.C., not Minnesota, brags about its mining industry representation around the world, and how it is expert in turning back the evil regulators wherever they may be found, and protecting mining companies from liability for the messes they make.

The color of C&M’s hat is obvious to even the casual observer. It’s as black as the coal their clients mine.

This was a stunningly wrong-footed move.

The MMB Commissioner, Myron Frans, who I like and admire, says, Oh, don’t worry!

Frans said the firm has reviewed its potential conflicts and is able to create an ethical wall between its other clients and the state of Minnesota.

“They like to work both sides of the issue,” he said. “It’s an opportunity to get them on the public service side.”

Opportunity? Translation: they don’t do that now.

It seems a little, well, adroit, doesn’t it? It seems a little adroit to a University of Minnesota law professor, too:

There are, however, more subtle problems, said Richard Painter, who teaches legal and government ethics at the University of Minnesota Law School. He was hired by 3M as an expert witness in its dispute with the state.

“My gut reaction is, if your decision is to deny the permit, then mining company lawyers are not going to be your best advocates,” he said.

Painter also questioned whether Minnesota and the law firm can fully assess potential conflicts of interest before the state decides for or against PolyMet’s plan.

This is especially the case when the current proposed miner is the laughably lightweight PolyMet Mining, the never-a-mining company that will obviously need a real mining company as a partner or investor to actually operate a mine.

And what are the chances that the real mining company has been represented by Crowell & Morning somewhere? Pretty good, I’d say. Especially if that real mining company is Glencore PLC, which has coal mines around the world. C&M is big into coal.

Commissioner Frans says that all the Minnesota firms were “conflicted out.” But C&M is almost certainly going to be “conflicted out” when a real mining company is identified.

And then the citizens of the state are going to be left to wonder if the whole thing was an inside job.

Update 12/13:

Kathryn Hoffman, the Minnesota Center for Environmental Action’s lead mining lawyer, is pretty steamed about the choice of Crowell & Moring. What were you thinking? she asks in a letter to Governor Dayton:

Noting that the Crowell & Moring “markets itself to clients who seek to undermine and limit the application of state and federal environmental law,” Hoffmann characterized the firm’s prior record of mining-related litigation as “antithetical” to Dayton’s values.

Reader Ned comments:

Reading Ms. Hoffman’s letter, I was wondering, is it standard procedure for Attorney General Lori Swanson to appoint the firm (Crowell & Moring) to this position? Is it under the direction of the Governor’s office or does she do this independently?

It seems from the media reports that the hire is actually being run out of the Governor’s office, by MMB Commissioner Myron Frans — that state’s COO. I do suspect that the formal appointment of a firm of lawyers to represent the state in a matter like this has to be made by the Attorney General, but I am not entirely sure. But it’s obvious that Governor Dayton is in on it.

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