ML19331A793
| ML19331A793 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 01/05/1978 |
| From: | Engelhardt T, Olmstead W NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8007230822 | |
| Download: ML19331A793 (8) | |
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UNITED STATES OF AMERICA flVCLEAR REGULATORY COMMISSI0ft 2
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 1/fM In'the Matter of
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Docket Nos. 50-329
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50-330 CONSUMERS POWER COMPANY
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(Midland Plant, Units 1 and 2)
NRC Staff's Statement In Response to the Special Board's Order of December 19, 1977 The Atomic Safety and Licensing Board designated to preside in this special proceeding (hereinafter the "Special Board") has directed in its prehearing order of December 19,1977 that each party which ini-tiated charges of professional misconduct against attorneys representing parties in the captioned matter submit a statement of those charges
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encompassed by the Atomic Safety and Licensing Board's (hereinafter "ilemand Board") Order of November 4,1977. The parties were also directed to identify the evidence which they intended to present and to request or object to di.scovery.
The NRC Staff, in its " Motion for Censure of Myron M. Cherry" dated March 25,1977, initiated charges of professional misconduct against Myron M. Cherry, an attorney admitted to practice in the courts of the State of Illinois, who represents an intervening party in the captioned proceeding. Mr. Cherry was admitted to practice before the Atomic Energy
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2-Commission (AEC) and its successor in interest the Nuclear Regulatory
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Commission (NRC) under the provisions of 10 CFR 52.713. jhe NRC Staff
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Motfon, based on 10 CFR 52.713 and ABA Ethical Considerations 7-36 and 7-37, specified conduct by Mr. Cherry (an unwarranted personal attack on NRC Staff counsel made in Mr. Cherry's March 10, 1977 letter to the Remand Board) which the NRC Staff believes failed to conform to the standards of conduct required of an attorney practicing before the United States courts and before this Agency. The Remand Board's November 4,1977 Order describes the additional circumstances leading to the NRC Staff's May 9, 1977 motion to institute charges against Mr. Cherry pursuant to 10 CFR 52.713.
On the basis of the statement of charges enumerated hereafter, the NRC Staff is requesting the Special Board to find professional misconduct
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j]onithe~ basis of the record of fir. _ Cherry's. conduct in this proceeding. ~,
_]_]In addition, the NRC Staff urges the Special, Board to conduct _
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an on-the-record hearing into the circumstances leading to Dr., Lawrence-Quarles, a member of the Atomic Safety and Licensing Appeal Board in i
this proceeding, to recuse himself as a result of certain allegations made by Mr. Cherry involving Dr. Quarles. We' urge this latter course of
. action because of the gravity of the matter and because we do not believe an adequate record has yet been made with respect to the facts. Based en such a hearing record and the full transcript of the hearing record i
before the Remand Board, the Special Board would be in a posit 1on to determine L
l what disciplinary measures, whether censure, suspension from the proceed-
.ing or no action at all, are appropriate.
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S The course of action outlined above is appropriate pursuant to the
'Special Board's.r esponsibilit'y as fact-finder on 'the charges prefe'rred _ '
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~_by the. Remand Board under 10 CFR 52.713. That regulatica establishes T_T
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qualifications and standards of conduct for attorneys admitted to practice before the NRC.1/ The Commission has stated that the provisions of 10 CFR 52.713 " require attorneys to conform to the standards of conduct applicable in courts of th'e United States and provide for dis-ciplinary measures where an attorney engages in dilatory tactics or disorderly or contemptuous conduct in the course of a proceeding."2/
Thus, disciplinary action, appropriate to the facts of the casa including suspension from practice in the proceeding, can be taken.
1/The jurisdiction of agencies to control attorney admission to practice and regulate standards of attorney conduct and the procedural _ require-ments governing agency disciplinary proceedings are well established.
See Koden v. United States Dep't of Justice, F. 2d
, No. 77-1500, sTTp op. (7th Cir. Oct. 22,1977); Schwebel v! OrrickT 153 F. Supp. 701, 704 (D.D.C.1957), aff'f on other grounds, 251 F. 2d 919, cert. denied 356 U.S. 927 (1958); Herman v. Dulles, 205 F. 2d 715 (D.C. Cir. 1953);
Goldsmith v. U.S. Bd. of Tax Appeals, 270 U.S. 117 (1926).
2/ Memorandum of June 16, 1972, Acceptance Criteria for Emergency Core Cooling Systems for light-Water-Cooled Nuclear Power Reactors, Docket No. RM-50-1 TM-26713 (1972).
The NRC Staff charges against Mr. Cherry are based on the belief that he has violated 10 CFR 52.713 (c) (2), (4), &-(5) of the NRC Rules of Practice ara ABA CANONS OF PROFESSIONAL ETHICS Nos.1, 7 & 8 in the course of his participation in the midland proceeding. With respect to the ABA Canons we believe that Mr. Cherry has been in specific violations of Disciplinary Rules DR 1-102, DR 7-104(A)(1), DR 7-106 (A) & (C),
DR 7-107 (H), DR 7-110 (B), and DR 8-102(D) and Ethical Consideration 7-37.
As examples of the nature of Mr. Cherry's violations of the above we cite the following, together with appropriate references to the transcript:
1.
Throughout the proceeding, on an almost daily basis, Mr. Cherry made unfair and derogatory personal reference to opposing counsel contravening Ethical Consideration 7-37. (Tr.102, 242, 278, 381, 395, 463, 514, 818, 914, 1240, 1256, 1259, 1274, 1476, 1637, 1723, 1776, 2172, 2178, 2233, 2284, 2501, 2502, 2575, 2764, 2893, 3074, 3138, 3454, 3466, 3475, 3732, s
3774-3778, 3827, 4047, 4116, 4246, 4249,-4318, 4328, 4360, 4371, 4492, 4707,5030,5843,5842,5917,6155,6187,6189).
2.
DR 7-104 governing communications with one of adverse interest was ignored by Mr. Cherry despite the Board's specific orders to the contrary.
(Tr. 373, 3249, 4142, 4153, 4561).
3.
Mr. Cherry disregarded rulings of the Board and advised his own witness to violate a direct Board Order to answer in violation of DR 7-106(A).
(Tr. 3790, 4154, 4155, 4204, 5874.)
4.
On repeated occasions Mr. Cherry alluded to matters irrelevant to the case which were never supported by admissible evidence contrary to DR 7-106(C)(1).
(Tr.167, 381, 401, 535, 572, 987, 2571, 2623, 2815, 3417, 4207,4241,4267).
5.
Contrary to OR 7-106(C)(2), Mr. Cherry repeatedly asked questions
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c which had no reasonable relevance to remanded issues and which were intended to degrade a witness or other person.
(Tr.1079,1110, 1219, 1701, 1703, 1758, 1771, 1847, 2141, 2195, 2449, 2822, 3072, 3115, 3742, 4281).
6.
Mr. Cherry asserted his personal knowledge of the facts in issue contraveningDR7-106(C)(3).
(Tr.1239.1568, 2679, 2928).
7.
Mr. Cherry frequently asserted his personal opinion as to the justness of the cause and credibility of witnesses despite the prohibitions of DR 7-106(C)(4).
(Tr. 463, 509, 572,1025,1727, 1834, '951, 2363, 3669, 3673, 4182, 4505, 4572).
8.
Throughout the proceeding Mr. Cherry displayed contempt for the proceedings and ignored custom and practice before the flRC in contravention of DR 7-106(C)(5). (Tr.1954, 2761, 2784, 3060, 3751, 4533,4990-5019).
9.
Mr. Cherry engaged in undignified and discourteous conduct degrading to the tribunal in violation of DR 7-106(C)(6).
(Tr. 94, 95,126, 165, 225, 884, 1073, 1240, 1264, 1390, 1942, 1954, 2044, 2469, 2840, 2969, 3411, 3424, 3437, 3452, 3740, 3786-3790, 4561).
10.
Mr. Cherry intentionally and habitually violated established rules of procedures or evidence disregarding DR 7-106(C)(7). (Tr. 2116, 2501,2541, 2573, 2815, 3417-3421,3750).
11.
Outside comments concerning the evidence of record prejudicial to the litigants' positions and the Comdission were made by Mr. Cherry in violation of OR 7-107(H). (Tr. 367, 2497, 2541, 2768, 2858, 4599).
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Mr. Cherry violated DR 7-110(B) by making ex parte contacts with the Board (Tr. 3841 see also Staff censure motion).
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DR 8-102 was breeched by Mr. Cherry by numerous false charges against the Commission and its adjudicatory boards. -(Tr. 59, 60, 63, 159, 242, 1430, 2333, 2526, 3546, 3732, 4182, 4561, 4596, 4707-4711, 4990, 5031).
14.
Although admonished numerous times, Mr. Cherry repeatedly disre-garded the professional rules of conduct.
(See eg. Tr. 280,
.'624, 1'053, 2502,'2574,.2877,'2969, 3688, 3732, 4143,' 4154, 4183
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4360. 4374, 4561.) if
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With the exception of the matter previously discussed involving Dr. Quarles, we believe that the charges against Mr. Cherry can be determined on the basis of the existing record. At 'this juncture'it is not possible to speculate C
as to the extent of discovery or'the identification of witnesses.
Such matters we believe must await the development of positions of the respective parties in this matter and the rulings of the Special Board.
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- 1) All transcript references are to the Midland proceedings conducted before the Licensing Board from November 1976 to May 1977.
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2 Respectfully submitted, o
William J.
mstead f
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Thomas F. Engelhardt Counsel. for NRC Staff 4
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Dated at Bethesda, Maryland this i
Sth day of January, 1978
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMt1ISSION I
BEFORE THE ATOMIC SAFETY AND LICENSING'80ARD In the Matter of CONSUMERS POWER COMPANY
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Docket Nos. 50-329 50-330 (Midland Plant, Units 1 and 2)
(Special Proceeding)
CERTIFICATE OF' SERVICE I hereby certify that copies of "NRC STAFF'S STATEMENT IN RESPONSE TO THE SPECIAL BOARD'S 0RDER OF DECEMBER 19, 1977" dated January 5, 1978 in the above-captioned proceeding, have been served on the following, by deposit in the United States mail first class or air mail, this 5th day of January,1978:
Valentine B. Deale, Esquire Ms. Mary Sinclair 1001 Connecticut Avenue, N.W.
5711 Summerset Street Washington, D. C.
20036 Midland, Michigan 48640 c
Fhrgaret M. Laurence, Esquire Harold F. Reis, Esq.
5007 King Richard Drive Robert Lowenstein, Esq.
Annandale, Virginia 22003 Lowenstein, Newman, Reis &
Axel rad Gary L. Milhollin, Esquire 1025 Connecticut Avenue 1815 Jefferson Street Washington, D. C.
20036 Madison, Wisconsin 53711 L. F. Nute T. S. L. Perlman, Esquire The Dow Chemical Company c
1776 F Street, N.W.
P. O. Box 271 Washington, D. C.
20006 Midland, Michigan 48640 Myron M. ~ Cherry, Esq.
Mr. Steve Gadler 1 IBM Plaza 2120 Carter Avenue Chicago, Illinois 60611 St. Paul, Minnesota 55108 Judd L. Bacon, Esq.
Milton V. Freeman, Esq.
Consumers Power Comoany Arnold & Porter 212 West Michigan Avenue 1229 19th Street, N.W.
Jackson, Michigan 49201 Washington, D. C.
20036
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Michael I. Miller, Esq.
Atomic Safety and Licensing Caryl A.' Bartelman, Esq.
Appeal Panel Isham, Lincoln & Beale U.S. Nuclear Regulatory Comission 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 Norton Hatlie, Esq.
Attorney-at-Law P. O. Box 103 Navarre, Minnesota 55392 h
i LY William ds Olmstead Counsel for NRC Staff 1
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