ML19326A724
| ML19326A724 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 01/19/1976 |
| From: | Frysiak J, Rigler D Atomic Safety and Licensing Board Panel |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002270892 | |
| Download: ML19326A724 (49) | |
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- r UNITED STATES OF AMERICA EiD NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board
- I I(h In the Matter of
)
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7 THE TOLEDO EDISON COMPANY and
)
Docket Nos. 50-346A --
l THE CLEVELAND ELECTRIC ILLUMINATING
)
50-500A COMPANY
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50-501A (Davis-Besse Nuclear Power Station,
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Units 1, 2 and 3)
)
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THE CLEVELAND ELECTRIC ILLUMINATING
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Docket Nos. 50-440A COMPANY, ET AL.
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50-441A (Perry Nuclear Power Plant,
)
Units 1 and 2)
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MEMORANDUM AND ORDER OF THE BOARD SUSPENDING COUNSEL FROM FURTHER PARTICIPATION AS ATTORNEY IN TIESE PROCEEDINGS By Motion of November 20, 1975, the City of Cleveland (City) moved this Board to disqualify the law firm of Squire, Sanders & Dempsey (the Firm), together with its Washington office, Cox, Langford & Brown, from appearing and/or acting as attorneys for the Applicant Cleveland Electric Illuuinating Compsny (CEI) or for any applicant in this matter, and to declare them ineligible to participate further in this pro-ceeding and to prohibit them from aiding or advising new counsel or counsel for other Applicants.
The basis for this Motion is an asserted conflict of interest arising from the Firm's prior dual re* presentation of CEI and the City and its current repre-sentation of CEI in these proceedings.
8 0 02 270 ff n
. Although the Motion, as filed, contemplated the immediate suspension of the Firm, it was evident from the outset (1) that a hearing as requested by the City could not be conducted within the time frame established by the Commission's Rules,* (2) the Motion was filed on the very eve of the hearing **
and (3) corr'spondence made available to this Board between the e
City and the Firn indicated that the City had been aware of the basis for disqualification and had been insisting upon the voluntary withdrawal of the Firm for a period of several months before the City's eleventh hour filing.
Under these circum-stances, the Board determined that it would be unfairly prejudi-cial to CEI to take any action with respect to the Motion without affording a full opportunity for briefing and hearing and that any initial representation of CEI by the Firm during the first few weeks of hearings, even if disqualification were to be ordered, would be directly attributable to the untimely filing of the City's Motion.
Accordingly, we permitted the Firm to l
- Applicant's November 20 communication enclosing the Motion to Disqualify requested a hearing at the final prehearing conference then scheduled for Wednesday, November 26, 1975.
- Last minute schedule adjustments necessitated the actual commencement of hearings on December 8, 1975 instead of December 1, 1975.
l continue to serve as counsel to CEI until such time as the Board, on an accelerated schedule, was able to render its decision.
The City's brief in support of its Motion was filed on December 1, 1975.
The City, with the prior consent of the Board, filed a supplemental brief on December 10, 1975.
An answer brief on behalf of John Lansdale, Jr., a partner in the Firm, in opposition to the Motion was filed on December 12, 1975.
It is not clear why the answer brief did not carry in its caption the names of Squire, Sanders & Dempsey or its Washington office, Cox, Langford & Brown.*
Nonetheless, it is apparent that the City's Motion encompassed the entire Firm and properly was addressed to the Firm as a whole including its individual partners.
ABA Code of Professional CEI's February 14, 1974 Notice of Appearance in Docket Nos.50-44A (sic) and 50-441A (Perry 1 and 2) includes the name of John Lansdale, Jr., Esq., Cox, Langford & Brown.
In referring to this Notice, Mr. Lansdale speaks of "our Entry of Appearance", thus confirming that the Firm rather than a single individual is subject to this motion.
Exhibit Q to City's Brief.
i l
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. Responsibility, Disciplinary Rule 5-105; Consolidated Theatre
- v. Warner Bros. Circuit Management Corp., 216 F.2d 920 (2nd Cir. 1954); American Can Co. v. Citrus Feed Co., 436 F.2d 1125 (5th Cir. 19 71).
Further, at the oral argument counsel for Mr. Lansdale and/or the Firm made no attempt to distinguish between the disqualification of Mr. Lansdale personally or the disqualification of the Firm.
Finally, if it is represented that the opposition to the Motion was filed only on behalf of 4
Mr. Lansdale, the Motion relating to the Firm would be subject to grant through default of the Firm in filing a timely answer.
The Board requested the parties to suggest a mutually convenient date for oral argument on the Motion and at the request of the parties, we devoted the morning of December 31, 1975 to that argument.
I.
INTRODUCTION - RULE 2.713 Although the City contends that there is an inherent authority on the part of the Commission to control conduct of attorneys irrespective of any particular provisions of the Rules, it seems clear to us that disposition of the Motion is governed by 52.713 of the Commission's Rules of Practice.
In l
pertinent part the Rule provides:
. (c)
Suspension of attorneys.
A presiding officer may, by order, suspend or bar any person from participation as an attorney in a proceeding if the presiding officer finds that such person:
(1)
Is not an attorney at law in good standing admitted to practice before any court of the United States, the District of Columbia, or the highest court of any State, territory, or possession of the United States; (2)
Has failed to conform to the standards of conduct required in the courts of the United States; (3)
Is lacking in character or profes-sional integrity; (4)
Engages in dilatory tactics or dis-orderly or contemptuous conduct; or (5)
Displays toward the Commission or any of its presiding officers conduct which, if displayed toward any court of the United States, would be cause for censure, suspension, or disbarment.
Any such order shall state the grounds on which it is based.
Before any person is suspended or barred from participation as an attorney in a proceeding, charges shall be preferred by the presiding officer against such person and he shall be afforded an opportunity to be heard thereon before another presiding officer.
As to the precise subpart of 2.713(c) at issue, it is apparent that the thrust of the City's argument relates to subpart (2) of this provision.
The essence of the City's position (other than the general ground relating to attorney conduct standards referred to above) is that dual representation by the Firm places it in a conflict position in violation of standards of conduct required in the courts of the United States.
It is this standard which we shall use in evaluating the City's charges.
6.-
To our knowledge, the instant disqualification motion will be a first impression issue under Rule 2.713.
The Rule provides that we may by order suspend the Firm as requested by the Motion upon a finding that any subpart has been violated and that the order of suspension shall state the grounds upon which it is based.
The Rule goes on to provide that charges shall be preferred against the affected attorneys and that prior to their suspension these attorneys shall be afforded an f.
opportunity to be heard before another presiding officer.*
Our analysis of the Rule indic'ates to us that the provision for reference to another presiding officer was designed to provide due process and fairness in situations in which the conduct of the affected attorney before the Board or the Commission is in issue.
It is designed to obtain a neutral or objective look at circumstances in which the Board may have an involvement in the suspension proceedings either because it is the moving party with respect to the suspension or because contumacious conduct has been displayed toward the Board.
These circumstan.ces do not apply here.
The Board has had no occasion to criticize the performance or the conduct of the affected firm, and there is no contention that due process rights of the firm would be violated because this Board would be less than objective in making its finding.
Because no due process violation can be envisioned, the City urges that the provision of 2.713(c) requiring the preference of charges and reference to another presiding officer i
does not and should not apply with respect to the instant motion.
Despite our agreement that the rationale requiring referral is not appropriate to this motion, the Rule provides no leeway in 4
our course of action.
Accordingly, the suggestion of the City must be rejected, and we will adhere to what we regard as the necessary requirements of the Rule as written.
It may be that as a result of this first impression consideration under the 1
l Rule, the Commission will wish to amend the Rule to achieve savings of time and resources of the Commission under circum-stances where che objectivity of the Board is not a factor in deciding disqualification.
Perhaps the reference to another presiding officer should apply only to situations encompassed within 52.713(c)(3), (4) and (5).
. II.
THE FACTS I
The Firm has served both CEI and the City for more than sixty years.
It has represented the City primarily, l
though not exclusively, in the capacity of bond counsel which representation has included analysis and legal advice with respect to financing the City's Municipal Electric Light & Power Plant (MELP).
Answer Brief at 2.
The Firm's billings to the City
-have been substantial although the amounts billed have varied annually subject to the work load and, in particular, with respect to the level of financing activity under contemplation by the City.
In 1974 the Firm received $147,000 from the City, and during the first one half of 1975 the Firm was paid $107,000 by the City.
City's Brief at 1.
In 1974 the Firm received M'ssrs. Lansdale and
$449,000 from CEI.
City's Brief at 1.
e Besse, senior partners of the Firm, serve as directors of CEI and are compensated in connection with these services.
City's Brief at 1.
The City contends that due to the long standing pre-eminence of the Firm with respect to legal opinions necessary to market successfully bond issues in the norther Ohio area, the City is dependent upon representation by the Firm and cannot obtain comparable services from other law firms.
The Board is not willing to make a finding that the services of Squire,
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d Sanders & Dempsey are indispensable, or that the City is unable to obtain other law firms which can provide services necessary to the successful sale of municipal bonds and notes We do recognize that a transition period would be required before another firm could acquire the same degree of expertise with respect to the City's financial condition and municipal admin-istration that the firm of Squire, Sanders & Dempsey has acquired during the past several decades.
We are unable to make any finding with respect to whether substitution of another firm as bond counsel to the City would result in greater legal expenses to the City, but we do not consider this to be a relevant factor in our consideration.
We are asked to address two particular situations which allegedly have an immediate bearing upon the Firm's representation of CEI in these proceedings.
These are a 1963 mortgage revenue bond issue and a $9.8 million bond ordinance of 1972.
A third incident called to our attention occurred in October of 1966 in which Mr. Lansdale wrote to Mr. Hauser, general attorney of CEI, with relation to the City's (MELP) indenture of mortgage and municipal electric light plant rates.
Exhibit E to City's Brief.
Karl Rudolph, an intended recipient of information contained in the memorandum enclosed in the Lansdale correspondence on these subjects, then was serving in the capacity of president of CEI.
_ We make special reference to the October 26, 1966 memorandum to the file signed by John Lansdale which accompanies City's Exhibit E, Mr. Lansdale's cover letter of October 27, 1966 to Mr. Hauser.
Page one of the October 26, 1966 memorandum makes abundantly clear that in discussions covering a "Little Hoover Commission Report" on MELP relating to general fund assessments for street lighting and payment terms under the trust indenture of MELP revenue bonds, Mr. Lansdale directly consulted with Mr. Brueckel, a Squire, Sanders & Dempsey partner who has been engaged in the representation of the City with respect to its bond work.
Mr. Lansdale's memorandum states:
We suggested to the Company that the competitive rates of The Cleveland Electric Illuminating Company could probably be taken as a measure of reasonableness.
Mr. Brueckel and I met with Mr. White and his associate, Mr. Beecher, and discussed this matter and we have, with the assistance of George Barry, again reviewed this problem.
We find that in this instance there was specific cross-fertili-zation within the Firm with respect to matters jointly affecting CEI and the City in which the interests of the parties were or could have been adverse.
We further make a specific finding
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as to Mr. Brueckel's Affidavit at page 11 that the assertions "With respect to the Municipal System, my legal services and those of my firm have been strictly limited to the service of i
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. bond counsel.
." and "I have never handled legal matters for The Cleveland Electric Illuminating Company, nor have I had contact with those executive officers or its house counsel in connection with any of the matters referred to herein including the financing matters with respect to which I have acted as bond counsel for the City of Cleveland" are questionable and that they obscure Mr. Brueckel's consultation with Mr. Lansdale, an attorney representing CEI and a member of the CEI Board of Directors.
As will become apparent with reference to our dis-cussion of the applicable legal standards contained in the ABA Code of Professional Responsibility, Mr. Brueckel's conversations with Mr. Lansdale constituted a prospective conflict in the event of future controversies between CEI and the City which involved financing of the MELP system, its rate structure and its payment obligations with respect to various trust indentures, and we so find.*
Also pertinent is Exhibit G to the City's Brief, a February 18, 1965 letter from John Lansdale to Ralph M. Besse, then president of CEI (now a Squire, Sanders & Dempsey attorney) relating to a proposal for interconnection between CEI and MELP.
The letter and the memorandum enclosed relate to CEI's proposal that MELP raise its rates to private customers.
Mr. Gibbon, the author of the memorandum, apparently had served the City in connection with its bond and financing problems.
Through We also reject as inconsistent with the record the argument of counsel for the Firm at Tr. 2523, 1. 4-12.
v
- testimony of one of the witnesses at the hearing, the former chief engineer for the City, 1971-73, Mr. Hinchee, there now is evidence before this Board that competition between the City and CEI focused upon the factors of (1) reliability and (2) service.
The City's competitive disadvantage of being less reliable in providing electric service to its retail customers was offset by its lower rate structures which encouraged customers to remain with it.
Thus, we find a direct relation-ship between CEI's proposals "that the rates to the municipal plants private customers be increased" as represented in the Gibbon to Luke memorandum (Exhibit G to City's Brief) and one possible area of controversy before this Board.
With respect to the 1963 mortgage bond issue in which the Firm represented the City, we find that this representation is too remote in time to be a meaningful factor with respect to the present proceedings, and there is no basis i
ta disqualify Squire, Sanders & Dempsey based on the 1963 1
representation.
We note that this Board established a post 1965 boundary date for discovery and we have permitted the parties -to discover pre-1965 materials only upon a showing of good cause.
Although we find that the Firm may be in a conflict position in this proceeding with respect to the 1965-66 Lansdale/
Hauser/Besse/ Gibbon correspondence relating to the City's rates, interconnection agreement, financing and plant system i
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~.% financing, we are even more concerned with 1972-1973 MELP financing activities of the City.
In 1971 John D. Brueckel, a partner of the Firm, was approached by Howard Holton of the City's Department of Financing with a request to handle the issue of additional notes under a 1971 bond ordinance.
Prior to any response by the Firm, however, the City attempte'd to obtain the services of other bond counsel including a counsel suggested by Squire, Sanders & Dempsey.
Following the City's unsuccessful attempts to employ other bond counsel, the Firm again was approached, this time by the City's Law Director, Richard Hollington, Jr., with a request that the Firm serve as bond counsel in connection with this new financing.
Answer Brief at 10; Affidavit of John Brueckel pp. 3-7.
It is charged that while serving as bond counsel for the City, the Firm supported efforts to undermine City Counsel consideration of an ordinance which would have been more advantageous to the City, and instead supported an amendment presented by Mr. Hauser, a general attorney of CEI, which required that the bonds be sold only at a public sale and not offered to the sinking fund or the treasury investment account.
Further, it is contended that Mr. Brueckel may have made available to other Firm partners working on CEI affairs information which the City discussed with or made available to him in connection with the bond representation.
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On its part, the Firm contends with respect to the 1972-1973 bond issue that it undertook its representation of the City only after clearing the request with its client CEI and only upon the City's agreement to request in writing repre-sentation by the Firm in connection with this ordinance.
A copy of Mr. Hollington's letter of July 24, 1972 to Mr. O'Loughlin of Squire, Sanders & Dempsey requesting such assistance is enclosed as Exhibit B to the Brueckel affidavit.
Although there is no doubt that the City importuned the Firm to serve as bond counsel, we find that this request letter does not support the Firm's contention that the City was fully advised with respect to the effect of this representation upon the City in the event any new controversies between CEI and the City were to develop involving the City's financing of its electric system.
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We find that the issue of the City's ability to finance its electric system, the issue of the reliability of the City as a factor precluding its participation as a member of a power exchange agreement such as the CAPCO pool which figures so intimately in our proceedings, and the City's financial ability l
to pay for interconnection agreements and/or transmission facilities l
which would enable it to obtain power from sources outside of the CEI service area all are factors which have been introduced into these NRC proceedings by CEI.
Special counsel for the Firm (for purposes of the disqualification motion) stated that due to
- the limited nature of his appearance in these proceedings, he was unaware of the nature of the controversy being considered by this Board and he conceded that if these issues were pending, a conflict might arise with respect to the Firm's bond counsel activities.
Tr pp. 2525-6.
We find that there was no express waiver on the part of the City with respect to representation of CEI by the Firm in possible future adverse proceedings between CEI and the City, and we find that notwithstanding the City's awareness of pending controversies between CEI and the City, no act, statement or discussion of Squire, Sanders & Dempsey pointed out to the City the effects of this representation apon possible future litigation before the NRC.
III.
LAW FIRM DOCUMENTS AS TO WHICH CEI ASSERTS PRIVILEGE Attached as Exhibit H to the City's Brief in Support of Motion is a list of documents withheld from production by CEI under clain of privilege which are alleged to represent correspon-dence between CEI and the Firm.
The City asks us to consider these documents to ascertain if they demonstrate an abuse of client confidences by the City through the Firm's subsequent discussion or transmittal of City data to CEI by Squire, Sanders & Dempsey attorneys.
Also involved, and prohibited according to the City, would be discussion or transmittal of City supplied or generated data to Firm attorneys engaged in the representation of CEI.
O
. At oral argument, Mr. Lansdale asserted that the Firm would raise no claim of privilege in connection with review of these documents *, but CEI stood on its claim of privilege.
Subsequently, it was pointed out by this Board that if Mr.
Brueckel represented in his affidavit that he performed no services on behalf of CEI it would be anomalous to permit CEI to assert privilege on Brueckel authored or action documents.
At this juncture, CEI undertook a reappraisal of the Exhibit H documents together with a handful of other Squire, Sanders &
Dempsey documents which were located pursuant to this Board's directives to the Atomic Safety and Licensing Board Panel support staff to pull all Firm documents contained in the file of privileged material.
As a result of this review, CEI advised the Board that it stood on claim of privilege with respect to most of the docu-ments, but it waived privilege with respect to certain documents which then were distributed to the parties.
At the Board's request, CEI re-examined its position with respect to one addi-tional document and waived claim of privilege as to that document.**
- The privilege in any event is that of the client and l
not the attorney.
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- Memorandum of February 25, 1972, Oberneyer to Howley.
We attach no significance to this communication in reaching our decision even though it indicates contact between a CEI employee and Mr. O'Loughlin, a Firm attorney in the bond department.
. With respect to the documents as to which privilege was raised, we refer to only two in connection with our decision.
These two, how-ever, are crucial documents in that in and of themselves they demon-l strate an abuse of the Firm's client relationship with the City and they contradict the implications if not the direct language of the Lansdale and Brueckel Affidavits.
We refer to a June 17, 1974 letter from Mr. Lansdale to Mr. Hauser, a general attorney for CEI, which encloses a memorandum written to Mr. Lansdale by Mr. Brueckel dated May 21, 1974 "concerning the problem of contracting with the MELP rather than the City of Cleveland."
In addition, the letter refers to conversations on this subject between M. Brueckel and r
Mr. Lansdale, and states that Mr. Lansdale also conferred on the subject matter of the memorandum with Mr. O'Loughlin of the Firm.
The memorandum which is dated May 21, 1974 is from Mr.
Brueckel to M. Lansdale and a carbon copy to Mr. O'Loughlin is r
shown.
The memorandum is directed to "the proposed agreement between the City of Cleveland and CEI concerning the supply to the City of electricity generated by nuclear power plants, and the understood desire of CEI is to have the agreement highlight the Municipal Light and Power Plant and System (MELP) in the maximum possible degree."
(Emphasis added).
Not only does this memorandum make clear that Mr. Brueckel has been informed of "the understood desire of CEI" with respect to the fashioning of this agreement, but that there is a direct nexus l
. between these proceedings and the information being exchanged in that the agreement specifically contemplates supply of nuclear power which would have to be from either the Davis-Besse or Perry units.
Because of their importance, we attach copies of these two documents to this Memorandum and Order as Exhibits A and B.
These exhibits cast doubt upon any inference contained in the Lansdale or Brueckel affidavits that there was no cross-fertilization or transfer of information obtained in connection with providing services to one client to the attorneys handling the affairs of another client.
In addition, we note that the record now reflects conversational contacts between various of the Firm's partners who are engaged in representing the diverse
' interests of CEI and the City.
IV.
THE LAW Our attention has been directed to several provisions of the American Bar Association Code of Professional Responsibility.*
In our judgment, Ethical Canons 5-16, 5-15 and Disciplinary
- These provisions have been adopted in whole or in part by many local jurisdictions including Washington, D. C.,
the address used by Mr. Lansdale in his Notice of Appearance.
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. Rules 5-101(a) and Disciplinary Rule 5-105(b) and (c) are most applicable here.
Although we hold Ethical Canon 5-16 to be dispositive, we also rely in particular upon the provisions of Disciplinary Rule 5-101 which require full disclosure and a knowing consent on the part of the affected client prior to waiver for dual representation purposes, ' mud upon Disciplinary Rule 5-105(b) relating to the continuation of multiple employ-ment.*
An extremely careful reading of the Firm's Answer Brief and the Affidavits attached thereto discloses that substantial opportunities existed for the transfer of confidential information supplied by one client (the City) to attorneys in the Firm representing the interests of another client (CEI).
We hold as a matter.of law that it does not matter whether the informa-tion exchanged can be proved or demonstrated to have originated from confidential materials supplied by the client.**
It may be argued that if the Firm withdraws from current non-NRC representation of the City, there will be no multiple employment.
Nonetheless, such client confidences as may have been available prior to the withdrawal unquestionably could create an assumption in the minds of the public that the Firm has an ability to utilize confidential client communi-cations in a fashion adverse to that client.
- Attorney Brueckel, however, may have disclosed such information. -See, e.g.,
October 1966 conference with Lansdale, City Brief Exhibit E.
I
- The Firm's answer in part turns upon the fact that materials relating to the operation and financing of the City's electrical system which the Firm utilized in rendering advice to CEI.were available from public sources as well as through data supplied by the City.
This does not resolve the problem.
As a practical matter, there is no way of separating information supplied by the client from information obtained through other sources.
Moreover, it puts the law firm in the untenable position of making a judgment as to what information the client contends would be confidential.
There simply is no objective way in which a firm can do this.
Thus, public confidence in lawyers i
generally would be impeded if we would permit the Firm to prevail on its argument that information passed from one client to another was non-confidential in nature.
Marketti v. Fitzsimmons, 373 F. Supp. 637 (W. D. Wis. 1974).
Second, the fact that the City may have been aware of then pending controversies between CEI and itself at the time it requested the Fi,rm to undertake bond counsel representation in 1972-73 does not mean that the Citywas specifically notified as required by Ethical Canon 5-16 or Disciplinary Rule 5-105(a) of the pending conflicts so that the City could make an intelli-gent waiver of its rights.* Also, it is probable that
- MR GALLAGHER (for the Firm): "I think if the obliga-tion is on us to spell out a verbatim disclosure, we would be i
I hard put to do it, because I think in this particular case we were not dealing with laymen, that we were not dealing with individuals.
We were dealing with Mr. Holton, who had the various i
' functions'I have indicated to you over.a number of years, an extremely sophisticated man.
We were dealing with the law director."
Tr. p. 2544, 1. 1-7.
, Disciplinary Rule 5-105(a) required the Firm to decline to represent CEI at the time the City petitioned to intervene in the above proceedings.
We note that this particular Disciplinary Rule does not turn upon any issue of knowledge or waiver on behalf of the client.
It places the sole responsibility on the lawyer to decline the proffered' employment.
Of similar effect is Disciplinary Rule 5-105(b) relating to the continua-tion of employment.
It seems apparent that when the Firm agreed to represent the City in connection with the 1972-73 bond issue, the Firm was aware that problems of future conflicts might arise.
Indeed, this might account for the Firm's reluctance to undertake such representation without a written request by the City.
That this course of action also portends an aware-ness on behalf of the Firm that a natural or inevitable consequence of its acquiescence in representation of the City might be dis-qualification in some future proceeding.
This is.particularly true in instances where no express waiver was granted with respect to such future conflicts.
It is clear from the record that no express waiver was granted, and we find no basis for holding that there was-any implied waiver with respect to NRC proceedings.* Moreover, the Affidavit of Daniel O'Loughlin
.Certainly the written request by the City does not suggest any waiver is being granted..Hollington letter of July 24, 1972 to O'Loughlin, attached as exhibit A to O'Loughlin affidavit to Lansdale Answer Brief.
% expressly states that the request for written clearance by the City is requested "because of the existing controversy", and not because of possible future conflicts.
Once again, since the obligation to obtain specific consent or to withdraw from later conflicting litigation is primarily that of the Firm, it is no answer to assert that the City was a sophisticated client which maintained a law department of its own.
Finally, we address the question of possible prejudice to the client if its chosen counsel should be required to withdraw.
At the outset, we recognize that great weight should be accorded a client's desire to select its own counsel, particularly where that chosen counsel has served as general counsel for the client for a period of more than sixty years.
We should not proceed lightly to require the client to seek alternate counsel.
At the same time, CEI should have been aware since at least August of 1975 that a motion to disqualify would be filed if Squire, Sanders & Dempsey did not voluntarily withdraw from participa-tion in these proceedings.
Thus, although we refused to defer to the City's demand for immediate relief because of the City's tardy and untimely filing, we also place some burden of antici-pation of possible disqualification and the consequences thereof on'CEI.
Surely, Squire, Sanders & Dempsey had a duty to inform CEI that the City was demanding its withdrawal as counsel in these proceedings.
We assume the Firm made the requisite
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notification to its client CEI when the issue of possible dis-i qualification arose.
We also note that CEI has not been dependent solely ~
upon the services of the Firm in representing it in these pro-ceedings.
A substantial part of CEI's representation to date has been performed by another law firm which has represented in a thoroughly professional and competent manner the interests of CEI and other applicants as well.
The City has also had the f
benefit of legal advice from its own highly qualified staff of
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house counsel.
While the house counsel most familiar with these proceedings recently voluntarily agreed not to participate actively in argument and cross examination in these proceedings because of the possibility that he might wish to testify on behalf-of CEI, nonetheless his legal counsel and advice has been and is readily available to CEI.
Lastly, without in any way minimizing what CEI obviously regards as extraordinarily valuable counseling and rendering of legal services by the Firm, we note that it has played no substantial speaking role in these pro-ceedings during the last year and a half.
Of course, we do not know the extent of behind the scenes advice rendered by the Firm and we cannot say that CEI has not relied substantially upon the Firm's advice in determining what course of action to pursue in these proceedings.
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. V.
CONCLUSION It is with regret that we conclude that the City has made its case that application of the Echical Canons and Disciplinary Rules cited, infra, require us to prefer charges for suspension and disqualification as requested in the City's motion. As we do so we note once again the high degree of pro-fessional skill which both CEI mad the City impute to the Firm; the Board's lack of criticism of any action undertaken by that Firm in the instant proceeding; and the Firm's own careful evaluation of its ethical responsibilities before it made its decision not to withdraw voluntarily.
Our reading of the correspondence and the briefs relating to this motion, and the Firm's retention of its own separate counsel to advise and present its side of the case suggests strongly that the Firm is convinced that its continued participation would not in any way constitute a violation of the standard of conducts required by the courts of the United States.
Although we disagree with this conclusion, it appears that the Firm made its decision based upon a thorough review of the facts the Canons, the Disciplinary Rules and after soliciting outside objective comment.
Based upon the above findings and application of the above set forth principles of law, we find that suspension as requested in the City of Cleveland's motion of November 20,
O
. 1975 is warranted, and we hereby prefer charges under Rule 2.713(c)(2) supporting such disqualification and refer these charges to another presiding officer in accordance with the provisions of Section 2.713(c).
The grounds for these charges are:
(1)
That since at least 1965-66 there has been a cross fertilization within the Firm in which information supplied by the City to the Firm in connection with financing and bond counsel activities has been made available to other I
members of the Firm who are engaged in the representation of CEI.
We hold the fact that this information in whole or in part may have been available from other public sources to be irrelevant to the underlying ethical considerations.
We further
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hold that as a practical matter it is not possible to determine how much of the transmitted material, either written or oral, involved the Firm's intimate knowledge of the City's legal affairs and operations and how much properly could be charac-terized as client-confidential information.
In these circum-stances, public' confidence in.the law requires that no such information emanating from one client be made available within the Firm to counsel representing a client with adverse interests.
(2)
We hold that the Firm's representation of the City in connection with the 1972-73 bond issue gave rise to a potential conflict in the event information relating to
(
- bond counsel advice became relevant to some later contest between the City and CEI.
We hold that this potential for conflict should have been and was known to the Firm at the time it agreed to represent the City.
We hold that the Firm should have recognized that absent express waiver by the City, the Firm might be precluded from representing CEI in any proceeding in which information supplied in the courts of the bond counseling could become relevant.
(3)
We hold that notwithstanding a recognition by the City and the Firm that there were existing controversies between the City and CEI at the time the Firm undertook the 1972-73 bond representation for the City, there was no full disclosure of possible future effect in the event of a conflict;
' nor was there consent of the client (the City) that the Firm represent CEI and not the City in the event of such conflict as required by Disciplinary Rule 5-101(a).
(4)
We charge that there was an actual transmittal of material relating to the Firm's advice to'the City in connec-tion with the 1972-73 bond issue to attorneys within the Firm representing the interest of CEI in adversary proceedings, specifically,.the Lansdale letter to Hauser of June 17, 1974 and the attached Brueckel memorandum to Lansdale of May 21, 1974.
'(5)
We hold that it was CEI which introduced into these proceedings the issue of the City's financial position
.~
T
- and thus placed before us information also relevant to advice rendered by the Firm as bond counsel for the City.*
(6)
We hold that Ethical Canon 5-16 is applicable to the present situation and that it requires the suspension of the Firm in accordance with the provisions of the Commission's Rule 2-713(c) (2).
VI.
CERTIFICATION At the hearing, both CEI and the City requested certification in the event our decision rejected the position each respectively espoused.
The Board indicated it would be inclined to certify the question in the event charges were preferred and another presiding officer reported to this Board that the charges should be upheld.
The City has argued that failure to grant a disqualification motion upon which it ulti-mately may prevail constitutes prejudicial error which could nullify the entire proceedings now in progress.
While we need
- not decide that question at this time, we find preliminary merit to the City's position.
The only caveat we interpose is that it was the City which is responsible for such delay that now l
See Prehearing Fact Brief of CEI of December 1, l
l 1975, Part D.
. exists in the resolution of this motion by failing to take timely action over a period of months.
Thus, it seems plain that the City is in no position to complain with respect to the partici-pation of Squire, Sanders & Dempsey during the interval required for the proper disposition of this motion.
Accordingly, neither Rule 2.713, nor equitable con-sideration require or permit the suspension of Squire, Sanders
& Dempsey until such time as the presiding officer (or Atomic Safety and Licensing Board) which will review and pass upon j
1 the charges now filed advises us with respect to their validity.
The disraaring opinion of Mr. Smith is attached.
Susper.
, as requested by the City's Motion hereby is granted but not effective until a report has been received from another presiding officer as required by Rule 2.713.
ATOMIC SAFETY AND LICENSING BOARD b.L,Lk Jphn M. Frysigk, Member Ib L.
Dougla V.
Rigl
, Chairman Dated at Bethesda, Maryland this 19th day of January,1976.
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i June 17, 1974 11EC Elv E.D JUN 18 @
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g Mr. Donald II.11' user Corporate Saliettor
{ kg The Clewsland F.lectric
%h 111uminating, Company UTA P. O. Box 5000 Cleveland, Ohio 44101
Dear Don:
I enclose horcuith a meraornadum written to me by John Brueckel under date of May'21, u 74, cencerning the prob-Icm of contracting with the MF.LP rather than the City o'f Cleveland.
I do noe know why I neglected to scnd this en :o you at the time althour,h I did call y.ui on. the telephone afccr ciy convercation uith Mr. Brueckel, which prect.ded this metorandum.
I nir,ht add I have tall ed ro D. n O'Loughlin % cut this cc.v problen and he concurs in the memorandom.
Sincerely, G
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hohn Lansdale JL:er 1
Liclecure i
EXHIBIT A TO MEMORANDUM SUSPENDING COUNSEL FROM FURTHER PARTICIPATION AS ATTORNEY IN THESE PROCEEDINGS w/
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!!ay 21,1974 11 E !! G R A II D U !!
p YEc TO:
Joi.n Landi: dale g
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J. B. ?,rucchel 9-
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D. J. O'Loughlin
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II. E. Knopf N
p os This memoranduu has reference to the proposed agreement betvcen the City of Clevelend and CEI concerning the supply to the City of c1cc-tricity Lencrated by nucicar power plo.ntc, and the understood desire of CEI is to have the agreenent highlight the !!unicipal Light and ?ower Plant and Syctem (!!EL?) to the maximum possibic degree.
At your request, I suggest that you take into consideration the follouing:
1.
As you are fully auarc, liELP is not an independent arm of the City and does not enjoy even the " autonomous" ctatus of CTS.
In point oC fact, the Charter of the City makes provision for a department of public utilitics to be hesIcd by a director and authori:cs the establishment of divisions thereof, with a commiscionce or chicf to be in charge of 0.ach division. Purs:aar to this Charter authorization, Section 1.2501 of the Codified Ordinnucco of the City establishes a Divicion of Light and Poucr in the Department of Public utilitica to be adminictcred and controlled by the Co:xuinaioner of Light and l'over cabject to the supervision and directic.a of the Director of Toblic Ucilitics.
2.
To a certain extent at least, you :nay have to give attention to prior practice that han been fo11 cued in preparing contrnets to which EXHIBIT B TO MEMORANDUM SUSPENDING COUNSEL FROM FURTHER PARTICIPATION AS ATTORNEY IN THESE t
PROCEEDINGS
/
4 -L the City han been the party on behalf of HELP. I am not familine with th.:
forms of thene contractn, t.ut I do call attention to the attached ordinances Giving contracting authority to the Director of the Department. In thic connection, it secus to me that cone of these ordinances are helpful in identifying the contract as being for the Division of Light and Power of the Department of Public Utilities, and this forms the basis for the sug-Section nade in a later portion of this memorandum.
3.
There is some historical evidence for the proposition that the Council at 1 cast regards M2LP as being an enterprise which shculd stand on its own feet, and I regard this also as being helpful. Thus, when the ordinance authorizing the electric financing currently being of fered for sale was vending its way through the Council, there was strong opposition to having the City purchase the issue internally since this was somehou regarded ca piscing a burden on the taxpayer. In addition, the attached Ordinance !*o. 1054-72 seems to establish a cort of debtor-creditor relationship.
On the basis of all of the foregoing, I would suggest that the agreement be between CEI and "the City, accing on behsif of its Municipal Elactric Light and Pouer Plant and System (hereinaf ter referred to as "MELP")"
and that a substantial number of references to MELP be made throughcut the 1
agreement. Hopefully, this will do the trick.
i l
l
DISSENTING MEMORANDUM I do not agree that 20 CFR 2 713(c) anticipates the procedure followed by the majority in issuing its order suspending Squire, Sanders, & Dempsey (the Firm or SS&D) and Mr. Lansdale from these proceedings.
We all agree that the Licensing Board, not "another presiding officer", has the responsibility to make findings under 2.713(c) (1) through (5) and, if grounds exist, to issue the Order of Suspension.
But the regulation does not permit this action until the attorney, after being charged, has been afforded an opportunity to be heard before another presiding officer.
I have no particular authority for.this position except the ambiguous language of 2.713(c) and traditional and elemental concepts of due process.
The fact that the Lic'ensing Board may be free to change its findings and vacate the order after a report from the second presiding officer does not cure the problem inherent in requiring the charged attorney to defend himself after the Board has already decided.*
- I do not suggest t' hat the Board has treated SS&D unfairly.
The Firm was given an opportunity to be heard before the Order issued.
Section 2.713 is unworkable and should be modified.
Referral to the second presiding officer should be within the discretion of the first presiding officer to avoid redundant hearings.
The presiding officer hearing the evidence should make the initial determination.
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.4n Therefore, it would be better tc defer a discussion of the merits of City of Cleveland's (City) motion until after the report of the second presiding officer.
However, if the second presiding officer agrees with the majority of this Board that the SS&D should be suspended, the matter will apparently be certified without further consideration and the opportunity to comment will have passed.
Tne City should fail in its Motion to Disqualify the Firm for the following reasons:
1.
Applicant, Cleveland Electric Illuminating Company (CEI), is without fault in this con-troversy and it would be unfair to interfere with its choice of legal counsel now.
2.
There has been no showing that City will be injured in its legitimate interests by the continued participation of the firm.
City has been represented by its own competent counsel throughout.
3 The only arguable adverse effect of the continued participation of SS&D would.be that the firm might adduce more information because of its i
familiarity with City's affairs than if it were a stranger to City.
This information, if any,
~:..._
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. would be of a public, nonconfidential nature and would be subject to the rules of evidence.
4.
City is not without fault.
By employing the Firm knowingly in the face of a conflict, City materially contributed to the situation about which it now complains.
5 City's motion is untimely.
It was filed without briefs on November 20, 1975 City was directly informed of SS&D's participation when City lawyers met with Mr. Lansdale on December 13, 1973 The foregoing considerations are equitable in nature.
If the record were to demonstrate that the firm violated the Disciplinary Rules of the Code of Professional Responsibility, or had clearly acted counter to the aspirations of the Code's Ethical Considerations, suspension would be required despite inequities to the client.
This would simply be the necessary price of preserving our legal system and maintaining the public's confidence in the rule of law.
This is not the case presented here.
In retrospect, SS&D may have erred in entering into a dual representation where the potential for conflict was pa tent, but it did so in good faith and its actions seemed reasonable at the time.
At least its actions were not so unreasonable as to require suspension, where
. suspension would also do damage to other ethical principles.
~
_4_
There is, however, a_ troublesome problem under Canon 9 of the Code of Professional Responsibility which canon man-dates that a lawyer should avoid even the appearance of professional impropriety.
Because of SS&D's dual representa-tion of CEI sr.d the City, and because of the complexity of the factual setting,_the appearance of impropriety exists here.
But, according to the limited record before us, this appearance is more illusory than real.
It is not of sufficient substance to outweigh the requirement of Ethical Consideration 9-2 that a lawyer's duty to-his client or to the public should never be subordinate merely because the full discharge of his obligation may be misunderstood.
Factual Background My view of the controlling facts differs in some respects 3
from the view of the majority.
This is an antitrust hearing.
CEI and others have applied for licenses in Northern Ohio.
CEI and City are direct competitors for electric load in Cleveland.
City alleges that CEI is attempting-to destroy its electric system.
The financial vigor-of the City's electric system is germane because it relates to its' viability, and its capacity to compete with CEI and to participate in' coordination and access to nuclear power.
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,**s SS&D is the largest law firm in Ohio.
The 1974 Martindale-Hubbell Law Directory lists more than 140 partners and associates.
The firm has represented CEI for 65 years as.
general outside counsel.
This has been a continuous and close relationship.
Mr. Lansdale has been a director for many years.
Mr. Besse, a senior partner, was President, then Chief Executive Officer, and is now a director of CEI.
As a part of his firm's continuous relationship with CEI, it was natural for.Mr. Lansdale to represent the company in this proceeding 4
and he actively did so very early, dowever, he'has seldom appeared at the evidentiary hearings.
CEI also has other, very competent counsel, Shaw, Pittman, Potts and Trowbridge,
~
for this litigation but this firm also represents the joined applicants.
SS&D also has a very large municip al bond department; probably the largest in the United St.tes.
The firm does almost all the municipal bond wori in Ohio and it has been principally as bond counsel that City has employed SS&D.
City's relationship with SS&D also extends back 65 years, but unlike CEI, City employs SS&D when needed.for a specific proj ect. - Despite the sericus charges by City against SS&D, it continues today to employ the Firm and will do so in the near future.
City does not seem to claim that its current
s -
. employment of SS&D is a conflict and this is not asserted as a basis for its motion.
This apparent contradiction is explained by the fact that, in addition to being very competent in municipal bond law, SS&D has prestige in the bond market.
For practical purposes, City must use SS&D to sell bonds on favorable terms.
The Firm's imprimatur assures the bond market that the issue has underlying legal validity.
Most of SS&D's work for City has had no direct relevance to this controversy although City claims that the years of familiarity gained in the conduct of its affairs is in itself
~
an impermissible conflict.
The majority of the Board examined three incidents which have a bearing upon the motion to disqualify.
All relate to City electric system bond issues.
The majority regar'ds the first incident relating to the 1963 electric and light plant mortgage bond issue to be too remote in time to be meaningful.
I agree.
The second incident pertains to the episode described in Exhibit E attached to City's Brief in support of its motion dated December 1, 1975 Mr. Brueckel of SS&D who later r
1
~
1 represented City in the 1972-73 bond issue, discussed City electric plant revenue bonds with Mr. Lansdale.
It seems that in October 1966, SS&D was preparing, on behalf of CEI, to give City advice on electric rates.
This advice, if followed, would have raised City's electric rates.
Therefore, Mr. Brueckel participated with his firm in acting for CEI against the competitive interest of City's electric system.
This is not surprising.
CEI has been SS&D's primary client throughout.
f While the incident demonstrates the potential for conflict, it should not be the basis for suspension now.
We should not suspend an attorney from practicing before this Commission unless there is a nexus between the alleged misconduct and this proceeding.
This incident was three or four years before the instant applications were filed.
Moreover, it has not been established'that Mr. Brueckel had a conflicting and fiduciary relationship with City in 1966.
The so-called 1972-73 municipal electric plant. bond issue is t'he third incident considered by the majority and is the-event which has given rise to the more serious appearance 1
of impropriety.
In 1971, the City decided to issue one year anticipatory notes for two million dollars pending the $9.8 million bond i
Lissue of-1972-73.
According to.the only evidence directly
~'
_8-on the point, particularly the affidavit of Mr. Holton who was then a City fiscal officer (Lansdale Answer Brief December 12, 1975), SS&D had advised the City that it was reluctant to undertake its customary bond counsel service because of the pending conflict between City and CEI.
City therefore retained the Wood firm of New York which firn then prepared the 1971 anticipatory note ordinance.
Because the Wood firm was not familiar with Ohio law, the City Law Department and Utility
. Department decided not to continue to employ that firm for the.1972-73 bond issue."
But by June 1972, City officials had also come to the conclusion that their controversy with CEI would result in a conflict of interest if SS&D were to represent both parties.
Whereupon Mr. Hollington, then City Law Director, advised SS&D of this fact (O'Loughlin affidavit, Lansdale Answer Brief) and requested SS&D to recommend other bond counsel.
Mr. O'Loughlin of SS&D recommended the Bricker firm of Columbus or the' Peck firm of Cincinnati, especially the Bricker firm.
The Bricker firm was unable to handle the issue.
The Peck firm was not requested to handle it.
Mr. Hollington-returned to SS&D with the request that SS&D handle the issue
- The Wood firm was later reemployed in connection with this issue and'in 1974 it' prepared the prospectus.
L:
.. notwithstanding the conflict.
SS&D, still concerned, requested and received permission from CEI to handle the issue.
SS&D also requested and received explicit and strong written requests from the Law Director and Utilities Director.
At this point, the mental attitudes of the parties should be considered.
City believes that it "must and does totally rely" upon SS&D, " depends almost exclusively" upon the firm and its need for SS&D is " critical".*
Mr. Davis, the incumbent Cleveland Law Director describes City's plight at Tr. 2492 by stating, "Where else could they go?
The money was needed.
We went back to the embraces of Squire, Sanders and Dempsey."
The evidentiary record to date establishes that in 1972 the City electric plant was in serious need of money.
Without the ?9.8 million bond issue, the electric system might have failed.
This was public knowledge.
Faced with their dissatis-faction;with the Wood firm and the refusal of the Bricker firm, City was desperate.
- Pages 3, 16, and 35 of City's Brief of December 1.
- If the City fathers recognized that SS&D was essential to the survival of.the light plant, it must also be assumed that the Firm must have known of its own importance.
Further, SS&D necessarily knew that, by virtue of its monopoly in the field and its long relationship with City, it. shared the responsibility for City's dependence upon the Firm.
To have deserted the City at that time in favor of City's adversary would raise other ethical problems especially under Canon 1, EC 1-1, Canon 2, EC 2-26,* 2-27 and 2-31 and Canon 7, EC 7-1.
It may reasonably be argued that SS&D under-took the 1972-73 bond issue as a civic and professional responsibilit~, albeit well-paid.
The evidence permits this inference at least as well as any other.
On this point, City's counsel, Mr. Davis, states that:
...[T]here is an ethical duty upon a lawyer not.to leave his client in a position of jeopardy, when there has been a continuing
- EC 2-26.
A lawyer is under no obligation to act as adviser or advocate _for every person who may wish to become his client; but in furtherance of the objective of the bar to make legal services fully availcble, a lawyer should not lightly decline proffered employment.
The fulfillment this objective requires acceptance by a lawyer of his share of tendered employment which may be unattractive both to-him and the bar generally.
r-
i
/ representation, not to drop it, at a point where the client's interest will be hurt.
Tr. 2493 The same consideration mlst also apply to SS&D's duty to CEI.
Mr. Davis also concedes that dual representation of both clients is not per se an impermissible conflict.
Tr. 2482-88.
Moreover, if CEI and SS&D had agreed to withhold the Firm's services from City in order to preserve CEI's right to its regular legal counsel, that act could have had the very anticompetitive effect City now charges CEI with intending.
Nevertheless, there was a direct and substantial conflict of interest.
Were it not for unfairness to CEI, suspension of the Firm would be appropriate unde" Canon 9 In measuring the equitable considerations in favor of permitting SS&D to continue in the case, it should also be noted that City, knowing SS&D was legal counsel to CEI invaded the attorney-client relationship between CEI and SS&D for its own purposes.
By demanding SS&D's aid, City inte,rferred with CEI's right to counsel.
City now seeks to bootstrap its ethically questionable conduct into a litigative advantage in this proceeding.
In finding the SS&D is in violation of EC 5-16, the majority finds that SS&D's advice to the City with respect to m
r,
... the implications of the conflict was insufficiently explicit.
I do not agree with this assessment.
The conflict was obvious.
It was the City who first raised the issue.
There was no need to explain to City's skilled lawyers what they already knew.
Nevertheless, SS&D did explain their concern about the conflict.
(Holton Affidavit, supra.)
To explain to the City the details of their case in this proceeding would have raised still further ethical problems if, in so doing, SS&D violated CEI's attorney-client privilege.
In addition, EC 5-16 appears to provide for the opportunity for the client to make an informed judgment as to whether it wishes to employ the lawyer.
Therefore, its application to the proceeding is remote because there was never any thought that City would employ SS&D in this litigation.
At that time, it had already retained its present counsel, and nothing has interferred with that relationship.
In evaluating thc propriety of SS&D's conduct, I do not depend upon tne fact that the information it absorbed from City was public'and nonconfidential.
An attorney should not use.any-advantage gained in representing a client.
Marketti v.-Fitzsimmons, 373 F. Supp. 637 (W.D. Wisc. 1974) is correctly applied by the majority to the extent that it relates to nonconfidential information.
But the fact is the
,~
1 information was public and was not confidential.
As bond counsel lawyers have an obligation to the public.
There is a requirement imposed by the Securities and Exchange Commission upon bond counsel to develop and report in a. prospectus all information relevant to the proposed security, even if that information is adverse to the interests of the client.
l Therefore, there could be no binding attorney-client privilege of secrecy between City and SS&D in connection with the bond issuet This circumstance warrants consideration because it demonstrates that little proximate injury, if any, will flow
'from SS&D's continued participation, notwithstanding the issue oof propriety.
I share the concern of the majority that Mr. Brueckel's affidavit appears to be wanting in candor.
Even assuming, he 1
overlooked.for the moment the fact that Mr. Lansdale is a CEI director, the affidavit was deceptively narrow because he, clearly did-confer with a CEI representative.
With respect to Mr. Brueckel's' memorandum of May 21, 1974 (Exhibits A and B attached to the Board's order), his advice was sought probably because he had been City's bond attorney.
This was improper, but'not sufficient to result in disqualification-
- Even though the Wood firm signed the prospectus, SS&D probably contributed to it.
. -.. considering all the circumstances.
Superficially, it may appear that'he and Mr. Lansdale were exploring a possible advantage to CEI in a proposed contract with City.
- But, within the context of this case as it is developing, CEI was properly exploring ways to settle the dispute and SS&D was trying to determine.how a feasible contract could be drawn.
A contract with City Council might not be workable.
Mr. Brueckel appears to be offering a solution in the interest of resolving a mutual problem.- His purpose was probably benign.
Even so, it was not within his province to help the City without its informed consent.
Mr. Brueckel has not yet had an opportunity to explain this situation, and the record
~
is incomplete in this respect.
If it were established that SS&D is not making a full and candid disclosure before the Commission in defending against the Motion to Disqualify, my opinion as to the need for disqualification would be affected.
As lawyers, all of us have an obligation to preserve the integrity of the legal system and to maintain public confi-dence in our processes.
If by mistake, or carelessness, or even by reasonable conduct, SS&D contributed to a substantial ethical problem, it must accept the consequences, and suspension might be appropriate.
But.we also have an' l
.m
obligation not to do other damage to the legal system in the cause of legal ethics.
In this case, the legal profession might be wise to be guided by the leading tenet of the medical profession.
Above all, do no harm.*
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VIvan W. Smith', Member Dated at Bethesda, Maryland this 19th day of January 1976.
...[A]bstain from whatever is deleterious and mischievous The Oath of Hippocrates.
o d
UNITED STATES OF AMERICA NUCLEAR REGULATORY CO:CIISSION
~
In the Matter of
)
)
THE TOLEDO EDISON COMPA!PI, ET AL.)
' Docket No.(s) 50-346A CLEVEIA!.*D ELECTRIC ILLID1INATINC )
50-440A COMPA!.Y
)
50-441A
)
(Davis-Besse Nuclear Power
.)
Station, Unit No. 1; Perry
)
Nuc1 car Power Plant, Units 162))
. CERTIFICATE OF SER'/ ICE A
I hereby certify that I have this day served the foregoing document (s) upon cach person designated on the official service' list compiled by the Office of the Secretary of the Commission in this proceeding in accordance with the requirements of Section' 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Commission's Rules and
. Regulations.
Dated at Washington, " C. this 197b.
N.D day of a
~
Ah MJ 4
Of fice ot/ tHe [3ecretary of the Co:. mission /
e l
t N
k AD
~-
1 UNITED STATES OF AMERICA NUCLEAR RECUIATORY COMMISSION l
In the Matter of
)
):
)
Docket No.(s) 50-346A (Davis;Besse Unit 1)
)
CLEVELAND ELECTRIC ILLUMINATING
)
)
50-441A (Ferry Units 1 and 2)
)
)
50-500A (Davis-Besse Units 2 and 3)
)
50-501A SERVICE LIST Douglas Rigler, Esq., Chairman Joseph Rutberg, Esq.
Foley, Lardner, Hollabaugh & Jacobs Antitrust Counsel 815 Connecticut Avenue, N. W.
Counsel for NRC Staff Washington, D. C.
20006 U. S. Nuclear Regulatory Commission
~
Washington, D. C.
20555 Ivan W. Smith, Esq.
Office of Antitrust & Indemnity
. Atomic Safety and Licensing Board Office of Nuclear Reactor Regulation U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D.
C.
20555 Washington, D. C.
20555 John M. Frysiak, Esq.
Benjamin H. Vogler, Esq.
Atomic Safety and Licensing Board Roy P. Lessy, Jr., Esq.
-U. S. Nuclear Regulatory Commission Antitrust Counsel Washington, D. C.
20555 Counsel for NRC Staff U. S. Nuclear Regulatory Commission Alan S. Rosenthal, Esq., Chairman Washington, D. C.
20555 Atomic Safety and Licensing Appeal Board Donald H.'Hauser, Esq.
U. S. Nuclear Regulatory Commission Victor F. Greenslade, Jr., Esq.
Washington, D. C.
205,55 Cleveland Electric Illuminating Company.
I Mr. Michael C. Farrar P. O. Box 5000 Atomic Safety and Licensing Appeal Cleveland, Ohio 44101 Board U. S.- Nuclear Regulatory Commission Joseph J. Saunders, Esq., Chief i
Washington, D. C.
20555 Public Counsel and Legislative Section Richard R. Sal:=an, Eso.
Antitrust Division Atomic Safety and Licensing App' sal U. S. Department.of Justice Board Washington, D. C.
20530 U. S. Nuclear Regulatory Commission i
Washington, D. C.
20555 l.
I DA
50-346A, ~440A, ~
- 41A, -500A, -501A' page 2' Gerald Charnof 5, Esq.
Honorable Edward A. Matto Shaw, Pittman,.Potts, Trowbridge Assistant Attorney General and Madden Chief, Antitrust Section 910 -17th Street, N. W.
.30 East Broad Street, 15th Floor Washington, D. C.
20006 Columbus, Ohio 43215 Lee C. Howley, Esq., Vice President Honorable. Deborah P. Highsmith and General Counsel Assistant Attorney Cen'eral Cleveland Electric Illuminating Antitrust Section Company 30 East Broad Street, 15th Floor P. O. Box.*000 Columbus,0hio 43215 Cleveland, Ohio 44101 Michael R. Gallagher, Esq.
David.C. Hjelmfelt, Esq.
Gallagher, Sharp, Fulton, Michael 01dak, Esq.
Norman'and Mollison 1700 Pennsylvania Avenue, N. W.
630 Bulkley Building Washington, D. C.
20006 Cleveland, Ohio 44115 Reuben Goldberg, Esq.
Duncan, Brown, Weinberg & Palmer Arnold Fieldman, Esq.
1700 Pennsylvania Avenue, N W.
1700 Pennsylvania Avenue, N. W.
Washington, D. C.
20006 Washington, D. C.
20006
' John Lansdale, Jr., Esq.
Steven M. Charno, Esq.
Cox, Langford & Brown Melvin G. Berger, Esq.
21 Dupont Circle. N. W.
Antitrust Dirision Washington, D. C.
20036 U. S. Department of Justice Washington, D. C.
20530 Leslie Henry, Esq.
W. Snyder, Es~q.
Honorable Thomas E. Kauper
. Fuller, Henry, Hodge & Snyder Assistant Attorney General 300. Madison Avenue Antitrust Division
' Toledo, Ohio 43604 U. S. Department of Justice Washington, D. C.
20530 Mr. George B. Crosby Director of Utilities
^
' John C.'Engle, President Piqua, Ohio 45350 AMP-0, Inc.
4 Municipal Building William M. Lewis, Jr.
20 High Street W. M. Lewis & Associates Hamilton, Ohio 45012 P. O. Box 1383 Portsmouth, Ohio 45662 Honorable Richard M. Firestone Assistant Actorney General Robert D. Hart, Esq.
Antitrust Section Assistant Law Director 30 East Broad Street, 15th Floor City Hall Columbus, Ohio 43215 Cleveland,-Ohio 44114 Honorable William J. Brown Anthony G. Aiuvalasit, Jr., Esq.
Attorney General Antitrust Division State of Ohio Department of Justice Columbus, Ohio 43215 P.. O. Box 7513 Washington, D. C.
20044
50-346A, -440h.
%1A, -500A, -501A '
Page 3 Susan B. Cyphert, Esq.
Joseph A. Rieser, Jr., Esq.
Antitrust Division Lee A. Rau, Esq.
Department of Justice Reed, Smith, Shaw & McClay 727 New Federal Building Madison Building, Suite 404 2140 East Ninth Street
, Washington, D. C.
20005 Cleveland, Ohio 44199 Terence H. Benbow, Esq.
David M. Olds, Esq.
A. Edward Grashof, Esq.
Reed, Smith, Shaw and McClay Winthrop, Stimson, Putnam P. O. Box 2009 and Roberts Pittsburgh, Pennsylvania 15230 40 Wall Street New York, New York 10005 Thomas A. Kayuha, Esq.
47 North Main Street
' Ruth G. Bell, Esq.
Akron, Ohio 44308 Janet R. Urban, Esq.
Antitrust Division Perry Public Library Department of Justice l
3753 Main Street Washington, D. C.
20530 Perry, Ohio 44081 Director I
Ida Rupp Public Library 301 Madison Street Port Clinton, Ohio 43452 a
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