ML19331A670
| ML19331A670 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 03/25/1977 |
| From: | Grossman M NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007180712 | |
| Download: ML19331A670 (8) | |
Text
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UNITED STATES OF AMERICA "i
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSIflG BOARD
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CONSUMERS POWER COMPANY Docket Nos. 50-329 t
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50-330 (Midland Plant, Units 1 and 2)
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[10 TION FOR CENSURE OF 11YRON (1. CllERRY Pursuant to 10 CFR Section 2.730 and 2.713, the NRC Staff hereby moves that Myron M. Cherry, Esq., Counsel for Intervenors in this proceeding other than Dow Chemical Company, be censured for conduct which fails to conform to the standards of conduct required of attorneys in the Courts of the United States.
Background
On March 7, 1977, counsel for the NRC Staff addressed a 1.etter to the Licensing Board, raising a question as to the propriety of a telephone-
' call initiated by Mr. Cherry to a member of this Board in which Mr. Cherry urged the Board to make scme arrangement for financial assistance to him.
By letter of March 10, 1977,gMr. Cherry purported to respond to the Staff letter. That letter makes no effort to defend the conduct which was put in question by the Staff's March 7 letter.
Instead, the letter first misstates the issue--incorrectly suggesting that the Staff was raising a question as to the propriety of the letters which Mr. Cherry addressed to the Board rather than raising a question to the propriety of the telephone conversation--and then 80071807,p g
proceeds to make an pffensive and wholly unwarranted personal attack upon counsel for the NRC Staff.
The Staff continues to believe that the questions raised in its March 7 letter require the Board's serious attention.
But, i'n any event, we l
submit tha.t Mr. Cherry's March 10 letter, considered in the background of his prior conduct in this proceeding, calls for formal action by this Board, beyond. mere admonition, to make clear that it will not For the sanction any continuatica of such reprehensible conduct.
reasons set forth below, the Staff believes that the aopropriate remedy is the issuance of a formal order by this Board noting its censure of Mr. Cherry and warning that any repetition of such conduct l
will require institution of a proceeding, pursuant to 10 CFR 62.713, i
to consider his suspension from this case.
l Appropriateness of the Remedy l
l Section 2.713(b) of the Commission's Rules requires that "an attorney shall confonn to the standards of conduct required in the Courts of the United States." The standards of attorney conduct applicable in Federal Courts are not codified by Rule but instead are drawn principally from the standards for professional conduct promulgated by the American Bar Association.
See, e_.E., Van Iderstine Co. v.
RGJ Contracting Co_., 480 F 2d. 454 (2d Cir. 1973).
Canon 7 of the l
ABA's Code of Professional Responsibility provides that "a lawyer
- ' ' ~ " - -
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, should represent a client zealously within the bounds of the law." The more specific " Ethical Considerations" which the ABA has developed in explanation of this Canon make clear that zealous advocacy does not justify conduct which abuses other counsel or which exhibits disrespect for the tribunal. Thus, Ethical Consideration 7--36 provides:
Judicial hearings ought to be conducted through dignified and orderly procedures designed to protect the rights of all parties.
Although a lawyer has the duty to represent his client zealously, he should not engage in any conduct that offends the dignity and decorum of proceedings. While maintaining his independence, a lawyer should be respectful, courteous, and above-board in his relations with a judge or hearing officer before whom he appears.
He should avoid undue solicitude for the comfort or convenience of judge or. jury and should avoid any other conduct calculated to gain special consideration.
and Ethical Consideration 7--37 provides:
In adversary proceedings, clients are litigants and though ill feeling may exist between clients, such ill feeling should not influence a lawyer in his conduct, attitude, and demeanor towards opposing lawyers. A lawyer should not make unfair or derogatory personal reference to opposing counsel.
Haranguing and offensive tactics by lawyers interfere with the orderly administration of justice and have no proper place in our legal system.
These particular ethical standards have been specifically adopted and applied in prior Commission proceedings.
In Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit No. 3), Docket.No. 50-382, ALAB-121, 6 AEC 319 (1977), the Appeal Board sua sponte ordered the striking.of a brief submitted by counsel for a party.
In "an 1
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. -obviously studied, as well as petty effort to demean the Chairman of the Licensing Board through the vehicle of outright uncivility," the brief referred to the Chairman by last name only.
The Appeal Board r
stated that such disrespectful and undisciplined conduct went beyond I
the bounds of legit'imate advocacy.
In Northern Indiana Public Service _
(Bailly Generating Station, Nuclear 1) Docket No. 50-367, ALAB-
_C_o.
o 204, 7 AEC 835, the Appeal Board, quoting from Ethical Consideration 2-37, noted its strong disapproval of a motion paper which character-The ized staff counsel'as "de facto co-counsel"'for the applicant.
Appeal Board described that comment as gratuitous, unwarranted, and unprofessional.
Finally, only recently the Appeal Board again reminded counsel that unpleasantries between counsel are not only unprofessional but unhelpful; they serve only to focus attention on personalities and distract attention from the issues to be decided."
Toledo Edison Co.
(Davis Besse Nuclear Power Station, Units 1, 2,
& 3) Docket No. 5-346A, order issued February 25, 1977.
On at least two occasions during the course of this proceeding, the Board found it necessary to give oral admonitions to Mr. Cherry to desist from insulting conduct with respect to fellow partici-f pants in the proceeding and to conduct himself in acccrdance with the standards required by attorneys in the United States Courts.
'(Tr. 2502-02; 2573-74)
There were many other occasions when similar admonitions would have been in order.
(E_.g., Tr. 2450-51,
5-2473,2489).
It is evident that these oral admonitions have not had the intended effect of inducing Mr. Cherry to conduct himself in
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accordance with the establish'ed standards for professional conduct.
Mr. Cherry's March 10 letter involves a gross violation of these staridards.
The letter is replete with insulting and abusive comments regarding the personal conduct, ability,-and motivations of NRC Staff counsel. Qudged by the benchmark of the Appeal Board decisions cited above, we submit that these comments unquestionably go far beyond the bounds of what is permissible in the zealous t
representation of a client's interest.
Accordingly, this Board should issue a formal order of censure and warning that any similar conduct in the future will require institution of a proceeding a
under 10 CFR 52.713 to consider the suspension of Mr. Cherry from further participation in this case.
Respectfully submitted, i
"*^ O h.!) ) n e.ise.1/ ~
Milton J. Grossman Chief Hearing Counsel L
Dated at Bethesda, Maryland this 25th day of March 1977.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of CONSUMERS POWER COMPANY
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Docket..-ios. 50-329
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50-330 (Midland Plant, Units 1 and 2)
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NOTICE OF APPEARANCE Notice is hereby given that the undersigned attorney herewith enters an appearance in the above-captioned matter.
In accordance with 52.713, 10 CFR Part 2, the following information is provided:
Name
- Milton J. Grossman Address
- U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Telephone Number
- Area Code 301 - 492-7201 (Or Code 179 - Ext. 7201)
Admissions
- United States District Court for the District of Columbia United States Court of. Appeals for the District of Columbia Circuit Name of Party
- NRC Staff U. S. Nuclear Regulatory Commission i
p sh ), e 1 \\ n. *.'.t /,t" J h Milton J. Grossman Chief Hearing Counsel Dated at Bethesda, Maryland this 25th day of March 1977.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION B_FFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
CONSUMERS POWER COMPANY Docket Nos. 50-329
)
50-330 (Midland Plant, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " MOTION FOR CENSURE OF MYRON M. CHERRY" and " NOTICE OF APPEARANCE" for Milton J. Grossman, in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or air mail, this 25th day of March 1977:
Frederic J. Coufal, Esq., Chairman Honorable Curt T. Schneider Atomic Safety and Licensing Board Attorney General U. S. Nuclear Regulatory Commission State of Kansas Statehouse Washington, D..C.
20555 Topeka, Kansas 66612 Dr. J. Venn Leeds, Jr.
Ms. Mary Sinclair Atomic Safety and Licensing Board 5711 Summerset Street 10807 Atwell Midland, Michigan 48640 Houston, Texas 77096 Harold F. Reis, Esq.
Dr. Emmeth A. Luebke Robert Lowenstein, Esq.
Atomic Safety and Licensing Board Lowenstein, Newman, Reis &
U. S. Nuclear Regulatory Commission Axelrad Washington, D. C.
20555 1025 Connecticut Avenue Washington, D. C.
20036 Myron M. Cherry, Esq.
1 IBM Plaza L. F. Rute, Esq.
l Chicago, Illinois 60611 Dow Cheinical, U.S. A.
Michigan Division Judd L. Bacon, Esq.
Midland, Michigan 48640 Consumers Power Company 212 West Michigan Avenue Mr. Steve Gadler Jackson, Michigan 49201 2120 Carter Avenue St. Paul, Minnesota 55108'
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a R. Rex Renfrow,' III, Esq.
Atomic Safety and Licensing David J. Rosso, Esq.
Appeal Panel Isham, Lincoln & Beale U. S. Nuclear Regulatory Commission One First National Plaza Washington, D. C.
20555 Suite 4200' Chicago, Illinois - 60603 Docketing and Service Section Office of the Secretary Atomic Safety and Licensing U. S. Nuclear Regulatory Commission Board Panel Washington, D. C.
20555 U. S. Nuclear Regulatory Commission-Washington, D. C.
20555-M ^IlA., [jf':;ee.,y o Milton J. Grossman Chief Hearing Counsel l
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