ML19344A323
| ML19344A323 | |
| Person / Time | |
|---|---|
| Site: | Midland, 05000300 |
| Issue date: | 06/15/1979 |
| From: | Deale V, Laurence M DEALE, V.B. |
| To: | Hendrie J NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-SP, NUDOCS 8008080513 | |
| Download: ML19344A323 (59) | |
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V A L EN TI N E B.DEALE s 1008 CONNECTICUT AVENU E. N. W.
WALTER T. S KALLEMuP JR. WAS MO N OTCN. D. C. 20C36 AREA COOC 202 June 15,1979 ITF necrmo S
The Honorable Joseph M. Hendrie Chairman %
United States Nuclear Regulatory Commission &
- dVN201979 > =
Washington, D. C. 20555 EYft %
Illlll' Re: Proposed Changes in Regulation Affecting g e N
_ Discipline in Licensing Proceedings
Dear Chairman Hendrie:
The special proceeding, In the Matter of Consumers Power Company (Midland Plant, Units 1 and 2), Docket Nos.50-329SP, s50-330SP, is behind us and the outcome was satisfactory. Hopefully,
..... we can alllearn something wo.-thwhile from the expenditure of a i.) good deal of time and energy in that legal exercise which, in our opinion, never should have occurred.
Your letter of January 30, 1978 stated that the Commission would appreciate having the Board's suggestions with regard to how the Commission's present regulations for handling disciplinary matters might be improved. Your more recent letter of February 7, 1979 confirmed this and it added that the Commission muld also be
} interested in the views of counsel who had represented the parties in the special proceeding.
Accordingly, two of us former Board members who sat on the referenced matter are submitting this letter report to you and the other Commissioners, along with the attacn=3 booklet, " Collected
- Views on NRC Regulations for Handling the Discip.
- ine of Attorneys ;
in Licensing Proceedings." The views of our colleague on the former i Board, Gary Milhollin, who is now in Europe, are included in the booklet.
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m 4ALCNTIN E O. O EALE- >. i At the outset, we believe it is useful to draw a distinction
'oetween enforcing discipline in a particular proceeding and enforcing discipline on a general basis. The former relates to action which a presiding officer might take against an attorney on i account of the latter's conduct in the hearing at hand, which action would affect the attorney's participation in such hearing alone. The 5
latter. relates to action against an attorney which has a bearing upon the attorney's general practice before the Nuclear Regulatory ,
- Commission (NRC) over a period of time, possibly involving more j than one case. .We address ourselves first to the particular.
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- 10 CFR $ 2. 718 f
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- From our point of view, the primary objective of enforcing j discipline against an attorney in a licensing proceeding is to j maintain good order in the proceeding itself.. The Commission's
i regulation at 10 CFR $2. 718 'says it well: '
- A presiding officer has the duty to conduct 1
a fair and impartial hearing according to law, to take appropriate action to avoid delay, and
, to maintain order. .He has all powers nece'ssary j to those ends, including the power to: . . . i (e) Regulate the course of the hearing and the conduct of the participants . . . [ underscore supplied] i It seems safe to conclude that the presiding officer does not need a conferral of additiocal power to get along in his controversial world. l
. 1 However, it would appear to be useful for 10 CFR S2.718 to state explicitly that the presiding officer has the power to suspend or bar an attorney from participation in a proceeding which is presently before the presiding officer for the sake of the good order of that proceeding. Such a consideration could easily;
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be embraced in an amendment to 10 CFR $2.718.
If an amendment along the suggested lines were to be decided upon,- there should be the provision that the exercise of any suspen-sion or bar of an attomey from participation'in a particular
' Full text appears at A of attached booklet J
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VALENTIN E C. O EALE proceeding, to exceed a stated time, may be exercised by a written order stating the grounds on which it is based, and that such order may be appealed promptly. Whether the appeal is to the Appeal Board or to a special board need not immediately concern us, though it would appear desirable that the appeal should be handled by someone with regular trial or evidentiary hearing
. experience.
The proposed sort of amendmeet to 10 CFR 52.718 would hopefully have beneficial side effects. It would give deserved recognition to the Licensing Boards.and presumably would encour-age those Boards to act in ale'adership role in the conduct of proceedings; also,- it would deter unwarranted conduct detracting from good order. A caveat is probably in order, that is, the presiding officers should be aware that the limitations upon their use of a power to suspend or bar is substantial. A supporting legal memorandum for general distraction among licensing board panel members would be helpful as would be a periodic session or two for presiding officers on their authority and responsibillty.
From the particular, we proceed to the general.
'
- 10 CFR 5 2.713
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While it is fairly clear that the Commission's Rules and Regulations are a basis for legitimatizing the barring or suspension of an attorney from a-particular proceeding, the Rules and Regula-tions are not a satisfactory basis for justifying the suspension or barring of an attorney from general practice before the Nuclear-Regulatory Commission (NRC). If the Commission wishes to pursue the subject of whether the limitation upon its authority to suspend
- or bar generally is centered merel,y in the language of its own Rules and Regulations or more broadly elsewhere, the subject is recom-mended for carefullegal research -- both with regard to th extent
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of the authority to suspend or_ bar an attorney generally from practicing before the agency and if such authority exists, how may it be exercised.
This brings us to section 2.713 of the Commission's Rules of Practice for Domestic Licensing Proceedings. The section, entitled " Appearance and Practice before the Commission in.
Adjudicatory Proceedings,." is a poor model for a regulation. For
- Full text appears at A of attached booklet t
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,m the sake of more precision of thought as well as management !
efficiency, the regulation ought to be subject to wholesale revision. {
l The section's subsection (a), under the subheading of ,
Representation, appears harmless enough, and whether or not it
- is modified, nuclear licensing would probably be unaffected.
Yet,' one is impressed with the fact that the subject of represen-tation is not treated adequately. While the subsection states
, that one can represent himself or be represented by a qualified attorney in good standing, nothing is said about anyone else having the right to represent another. Yet this is not uncommon.
An officer (or occasionally just a member) sometimes represents a corporation, partnership or unincorporated association.
Subsection (b), carrying the subheading Standards of Conduct, is similarly not well. thought through. Only attorneys who represent others must adhere to stated standards of conduct. What about other representatives ? Moreover, the standards of conduct for attorneys are meaningless as there is a vast number of courts of the United States.
.s O Subsection (c), entitled Suspension of Attorneys, first lists
' five general occasions when a presiding officer may bar or suspend a person from participation as an attorney in a proceeding. Except
- for one of the occasions, describing an attorney not being in good standing before a bar, the occasions are not worth attention here for they either are marked with vagueness or if actionable, would come within the scope of section 2.718. Generally, when a Licensing Board, seeks to enforce professional discipline against an attorney, the basis of the discipline ought to relate to the maintenance of good order in a proceeding rather than the morals, social conduct or etiquette of the attorney.
The final part of section 2.713 (c) states:
". . . - Any such order (i. e. , order to suspend or bar an attorney from partici-fpating in a proceeding] shall state the grounds on which it is based. Before any person is
VALENT:N o c. o zALE ]
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. "
The second sentence of the above ought.to be dropped altogether.
The conduct of an attorney in a particular proceeding may be the subject of discipline under section 2.718, and the barring of an attorney from participation in a proceeding because of a lack of good standing before a.bar under section 2.713 (c), essentially involving a simple checking out process, does not call for the type of "due process" prescribed. Also, the preferring of charges concept in the second sentence adds a needless complexity to the procedure for carrying out discipline. We prefer that the initial decision calling for discipline of an attorney by suspension or barring from participation in a particular proceeding be made by the presiding officer, and that that decision be appealable.
SUMMARY
In summary, the two suggestions here are uncomplicated:
first, modify-10 CFR 52.718 and second, revise 10 CFR 52.713 The purposes are directed to emphasizing that the presiding officer in a proceeding is the man in charge of that proceeding and that he ought to determine what if any discipline is necessary on account ;
of conduct of an attorney in that proceeding, that his criterion for er. forcing discipline is good order of the proceeding before him, and that his diecipline decisions of suspending or barring an attorney from participating in a proceeding are subject to appeal.
Sincer ly,
$4 Valentine B. Deale Mwee d N.h.>23Mo >
Margaret M. Laurence l
Attachment -
1 cc: The Honorable Victor GilinC=7- !
The Honorable Richard T. Kennedy l The Honorable Peter A. Bradford l
' The Honorable John F. Ahearne i 1
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! COLLECTED VIEWS ON NRC REGULATIONS FOR HANDLING THE DISCIPLINE OF ATTORNEYS IN LICENSING PROCEEDINGS J
NRC Regulations bearing upon discipline in a licensing proceeding ...._........................ A J
V1mw::i OF:
4 Milton Freeman, Esq. ......................... B 1
(Arnold and Porter, Washington, D. C.)
I David Bonderman, Esq. ......... .............. C
- (Arnold and Porter, Washington. D. C. )
!- . T. S. L. Perlman, Esq. ....................... D U (Kominers, Fort, Shlefer & Boyer, Washington, D. C. )
i Thomas F. Englehardt, Esq. .................... E (NRC's Deputy Executive Legal Director)
- William J. Olmstead, Esq. ........... ......... E (NRC's Office of the Executive Legal. Director) 4 Gary L. Milhollin, Esq. ........................ .F
~(Law School, University of Wisconsin; member.of Atomic Safety and Licensing Board for Special Proceeding, In Consumers Power Company (Midland Plant, Units 1 and 2))
Marcia L.. Proctor, M. A. , J. D. ................ G (Director, . Discipline and Procedures, National Center for Professional Responsibility, American Bar Association)
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,a NRC REGULATIONS BEARING UPON DISCIPLINE IN A LICENSING PROCEEDING 10 CFR $ 2. 713.
Appearance and practice befoie !
the Commission-in Adjudicatory !
Proceedings (a) Representation. A person may appear in an ,
adjudication on his own behalf or by 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. An attorney appearing in a represen-tative capacity shall file with the Cnmmission a written notice of appearance which shall state his name, address, and telephone number; the basis of his eligibility; and the name and address of the person on whose behalf he appears.
(b) l Standards of conduct. An attorney shall conform to I) the standards of conduct required in the courts of the United States. 1 (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) Eas failed to conform to the standards of conduct required in the courts of the United States.
(3) Is lacking in character or professional integrity; (4) Engages in dilatory tactics or disorderly or contemp-tuous conduct; or
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0 (5) Displays toward the Commission or any of its presiding officers ccnduct 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 pre-siding officer.
10 CFR $2.718 Power of presiding officer.
A presiding officer has the dut; to conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order. He has all powers necessary to those ends, including the powers to:
(a) Administer oaths and affirmations.
(b) Issue subpoenas authorized by law.
(c) Rule on offers of proof, and receive evidence.
l (d) Order depositions to be taken.
l (e) Regulate the course of the hearing and the conduct ;
of the participants. l (f) Dispose of procedural requests or similar matters. l l
(g) Examine witnesses. l l
(h) Hold conferences before or during the hearing for ;
settlement, simplification of the issues, or any other l proper purpose. '
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(i) Certify questions to the' Commission for its determination, either in his discretion or on direction of the Commission.
(j)' Reopen a proceeding for the reception of further evidence at any time prior to initial decision.
(k) Issue initial decisions; and G) Take any other action consistent with the Act, this chapter, and sections 551-558 of title 5 of the United States Code.
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ARNOLD & PORTER
. 1229 NINCTEENT H STRCCT N. W.
WASHINGTON. D. C. 2co36 vtLEPHONE;l202) .72*S7CO CA.LZ:*A strCPO" TEtEx: ..-2m March 9, 1979 .
Valentine B. Deale, Esquire 1001 Connecticut Avenue, N.W.
Washington, D.C. 20036
Dear Mr. Deale:
In response to our earlier conversation and your letter of February 23, 1979, this letter :entains our comments in response to Chairman Hendrie's request for i
suggestions as to reformation of the Commission's regu-
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.1ations for handling disciplinary proceedings.
As you know, we contended in the now-settled pro-ceedings involving Mr. Cherry and certain members of the Commission staff that the Commission did not have the au-thority to-impose discipline under the circumstances in-volved. .A copy of our brief of February 2, 1978, which set-forth the legal authority in support of our view is attached for your convenience.
While we continue to adhere to our view that the Commission has no authority to discipline attorney con-
. duct which does not actually disrupt a proceeding, these comments arelto suggest that as a matter of policy, the Commission.should change its procedures. In our view, for -the reasons set forth in the attached brief, the Commission should' recognize that it is not a wise allo- l cation of its limited resources to spend the time of its ;
boards on-attorney discipline matters unless the conduct l involved precludes the orderly continuation of Commission '
-proceedings.
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,, ARNOLD (& . PORTER; Valentine B. Deale, . Esquire March 9,-1979-Page'Two i
i h As this' case-itself demonstrates, attorney disci-pline matters may be just.asEhotly contested as nuclear. '
regulatory proceedings. Such attorney disciplinary mat-
. ters are not in an area which the Commission or its board l -members have particular _ expertise, and diverts the Com-
! mission, its boards,_and.the parties to Commission pro-l ceedings from the major thrust of the Commission's job --
to regulate.the'use of nuclear-power.
4 On the other hand, we recognize that the Commission must have-the power to keep its proceedings orderly and to
- prevent abuses ' by attorneys which disrupt ongoing proceed-ings.
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Accordingly, we suggest that the Commission adopt rules along the following lines:
0 1. Any behavior by an attorney, be he or
- she a staff attorney or the attorney for some other party, which disrupts the conduct of a proceeding will be subject to the Cotamission's attorney conduct rules.
- 2. Any conduct ~of-the sort' described in
, paragraph-1 shall be considered by the board before which the conduct occurs if the~ conduct
- is of such nature that continuing the proceed-j ing is difficult unless the~ issue relating to the conduct is immediately resolved. .Other-wise, the conduct'shall be considered by a separate board wi.th a mandate to resolve the problem-promptly. Any penalties imposed should be' limited'to assuring that the. Commission's procedures are not further disrupted. It may
, be that in extreme cases, a bar to the attorney
-from further= appearing in those proceedings will be. warranted.
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Valentine B.'Deale, Esquire March 9,'1979 Page Three
- 3. Any other conduct by an attorney which'the Commission or any board feels is unprofessional but which does not cause an immediate disruption to Commission proceed-ings shall be referred by the Commission to the Bar of the state or states in which the attorney whose cunduct is at issue is ad-mitted.
We have not tried to draft detailed regulations incorporat-ing- these principles, but would be available, for further assistance as the Commission requests.
We believe that adoption of these comments will greatly simplify attorney conduct questions, eliminate any doubts as to the Commission's authority, and result in
- a' wiser and fairer use of the . Commission's limited resources.
Yours truly,*s is i NS l' i % 1^Ll -
David Bondermanv cc w/ enclosure: Messrs. T.S.L. Perlman, Thomas F. Engelhardt i
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', UNITED STATES OF AMERICA !
NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board For Special Proceeding In the Matter of )
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LONSUMERS POWER-COMPANY )- Docket No. 50-329)
) 50-330)
Midland Plant,. Units 1 and 2 ) (Special Proceeding)
MOTION OF MYRON M. CHERRY TO DISMISS SUSPENSION CHARGES
- FOR LACK OF JURISDICTION
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This motion, filed on behalf of Myron M. Ch erry ,
Esquire, seeks dismissal for lack of jurisdiction of
-[) all charges preferred against him pursuant to paragraph 10 of the November 4, 1977 Order _ issued by the Midland Atomic Safety and . Licensing Board (" Midland Board")
in these proceedings. As discussed in detail below, the Nuclear: Regulatory Commission ("the Commission"),
and accordingly, this Special Board, is totally without
' authority to suspend attorneys for conduct of the sort which for=s the basis of these charges against Mr.
Cherry. Accordingly, these charges must be dismissed.
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O J-STATEMENT OF FACTS
- 1. ' Background of the-Present Proceeding.
This special proceeding arose out of hearings regarding the application by Consumers Power Company for an operating license for certain facilities in Midland, Michigan. The hearings before the Midland Board on the license approval involved the Commission staff and Consumers Power, both of whom strongly favored the license,. and a group o( concerned citizens, known as the Saginaw Intervenors, who did. not.
. ' Bechbse 'of the apparent ~ 1d entity of interest
\U between the. staff ~ and Consumers Power only the .participa-tion of the Saginaw Intervences cohtributed to the development of any so'rt"or useful record before the
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Midland Board. Es th'e Midland Board itself put it:
"[ Testimony offered by the Saginaw Intervenors see~ms] 'to' the Board to be valuabl.a.addi. tion.s to.the hearing
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r e c o'rd . ' ' We ' h a~v'e' 'so s t'a ted in the pa s t .
Without it, the only evidence in the record' relating to the same areas of concern will be that of the Licensee and the Staff which are not diverse
-in general effect. " . February 25, 1977 Order,- 1 I.
When :the Commission granted Consumers' license application.without consideration of several facters
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} the Saginaw Intervenors considered important, the Saginaw-Intervenors appealed lto the United States Court of Appeals for ;the District of . Columbia Circuit, which
' unanimously -reversed the Commission ' and remanded the Lease for. further proceedings. Aeschliman v. Nuclear.
Regulatory Commission, 547 F.2d 622 (D.C. Cir. 1976), ,
cert. granted, 429 U.S. 1090 (1977).
.Throughout the proceedings the Saginaw Inter-venors were represented by Myron M. Cherry, an experi-i; enced attorney in private practice and a member in good t standing'of the Bar of the State of Illinoi's. Much, i
if not all, of Mr. Cherry's representation of the Saginaw
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yd Intervenors has been at reduced fee or ~no fee, and for most.of these proceedings, which'are now in their eighth year, Mr. Cherry. has been the sole counsel for the
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'Saginaw Intervenors.1/ -
His contribution to the Midland l
4 proceedings is evident, not only from the results he ,
l achieved.on behalf of his clients, but from the statement of the~ Midland Board, which 'specifically " acknowledge [d]
that his participation.has been of value." February 25, 1977 order, 1 IV.
1/ For:the past two years, Mr. Cherry has been aided TromL time jto: . time by his associate Mr. Flynn. However, Mr. Cherry is .the only attorney fully knowledgeable about these ' proceedings - and about the Saginaw Inter-venors' interests.. .
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'~ Following the decision of the D.C. Circuit, i
Mr. Cherry moved the Midland Board to halt the construc-tion of the facility pending the remand hearings. The Midland' Board did not order an immediate halt to con-i
, struction, but instead ordered a hearing on this ques-1-
tion. In the course of the resulting hearings, Mr.
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- Cherry uncovered certain matters embarrassing to the staff and to Consumers Power.
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Specifically, Mr. Cherry discovered that Con-sumersPower'scounselhadattemptedtoconcealkhe i
highly significant .ract that Dow Chemical Company,, the
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4 major intended user of power from the proposed facil- l
- ities, was seriously considering terminating its agree- '
-ment' to purchase power frcm Consumers, thereby rendering '
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'the plant superfluous. Consumers'-counsel proposed l i
to conceal this fact by calling witnesses carefully 1
selected. for their lack of knowledge on this important l
subject.and-by threatening to sue Dow if its witnesses ,
a testified forthrightly on this subject, a course of 1 . .
conduct characterized by.Dow's counsel as " pretty damn
- close to blackmail.." Midland Intervenors Exhibit 25.
Mr. Cherry also discovered that Consumers' counsel had
.' planned to " prepare the NRC staff" for the hearings
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and was confident (quite rightly, as it turned out) that the staff would do no independent research or prep-aration for the : case and, therefore, would not discover
^ Consumers' strategen.E!
In light of this background, it is no surprise that the staff and Consumers Power, on the one hand, and Mr. Cherry's clients, on the other, found themselves in a hotly contested proceeding in which there were not only important substantive differences but als~o questions as Eo the conduct of certain counsel. As a result, the proceedings were accompanied by continuing acrimony among counsel, manifested by various charges
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and counter-charges 'which need not all be detailed here.1 2.- The' Suspension Charges 1
i On April 5, 1977, in response to one of the staff's charges -- this time a motion to censure Mr.
l Cherry for allegedly insulting the staff in an earlier l
l 2/ -On September 23, 1977, the Midland Board _ issued I an order citing Consumers' plan for concealing the. facts regarding Dow.- Despite protest from Consumers, the findings outlined above appear in only slightly modified form in the Midland Board's amended order dated November 4, 1977.- .
'1/ Some-of these matters are discussed in connection i withLthe motion, filed this1 day, to dismiss the censure charges against-Mr. Cherry.
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letter by accusing them of bias -- Mr. Cherry wrote a letter defending himself. In the letter he described his reasons. for concluding that the staff was not free of bias in its conduct in this proceeding. Mr. Cherry described an incident which had occurred before a hearing board of the now defunct Atomic Energy Commission, in which several board members had met with Mr. Cherry
- ' privately and requested him to temper his opposition to the Emergency Core Cooling System ("ECCS") rulemaking proceeding because he had "done enough to demonstrate improprieties" and further opposition would only " destroy the fabric of the AEC." ,
The ECCS proceeding has no
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fS relation to any matter before the Midland Board, and
..J Mr. Cherry did not name the AEC Board members ' involved in that proceeding 1 '
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On April 29, 1977, Dr. Lawrence R. Quarles, l l
now retired.-but then..a: member of .the Midland Appeal Board, recused-himself from.the Board because he had -
been a member of the defunct AEC hearing board to which Mr. Cherry referred in his. April 5 letter. Dr. Quarles d'id not check with Mr. Cherry to determine if the letter was meant to refer to him. However, in his recusal '
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?'- opinion, ' Dr. Quarles maintained that neither he nor any of.the other AEC board members participated in the conversation referred to by Mr. Cherry.
Mr. ' Cherry- then wrote to Dr. Quarles on May
. 6, 1977, with' copies to all parties in the Midland pro-j ceeding, explaining that his April 5 letter was in no I- way. directed to- Dr. Quarles because Dr. Quarles was
! not present when the conversation in question took place.
i On May 9,1977, the. staff made an oral motion ;
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j that the pidland Board suspend Mr. Cherry -from practice
[ before the Commission after the hearing on the question h of halting the Consumers Power project concluded. The L/ l i basis of this motion was stated to be Mr. Cherry's I
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allegedly false accusation directed.against Dr. Quarles. -
- ..May 9, 1977 Transcript,'at 5220-22.
- On Nove'mber 4, 1977, the Midland Board issued an order regarding-the various staff charges. With
.reseect;to the motion to suspend Mr. Cherry, the Board u l
founc that the events relating to the AEC hearing, which
-were' the sole. basis for the moi!_,h, "may very well result l l in a fact finding expedition into a proceeding not in-I volving this Board." ~ November 4,fl977 Order, 1 10.
See also January 9,1978 Transcript, at 79 (Remarks l
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t of Mr. Olmstead) .
However, the Board concluded that i~
- "the. conduct [of Mr. - Cherry) charged, if true, violates the American Bar Association Code of Professional Respon-4 sibility, Canon '7, and its Ethical Consideration 7-3 6."
. November 4, 1977 Order, 1 10. Accordingly, the Midland
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Board referred the charges to this Special Board.
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Notably, the Midland Board did not conclude j- that Mr. Cherry's conduct interfered with or obstructed
- the Midland proceedings. No such finding could have
{ been made because the hearing continued with Mr. Cherry's
! participation and without interruption for some five A
l . weeks after the April 5 letter which formed the basis
_)- of the charges. In fact, the staff's motion s.eeking i
Mr. Cherry's suspension explicitly requested that charges -
- be instituted following the'tecnination of the proceeding l -
on the question of halting the construction of the Con-sumers Power proJ6ct. May 9,'197.7 Transcript, at 5221.
Mr. Grossmant on behaltf"of -th staff, stated on the
~
- rdcord, "[w]e 'd6'not' bil'ie've thdt 'there is a need to
.4/. The Midland Board also referred to this Special
- Feard. serious charges against Messrs. Grossman and 76urte11otte of the Commission- Staff. November 4, 1977 Order, 1-11.
s8 l'
b
. - . ._ -_~ _ _ _ _ . - . . - , -
1' 3
)
e disrupt the conclusion of this suspension proceeding by the institution of these charges . . . ." Iji.
Also, &. noted, Mr. Cherry's conduct took place outside of the hearing room, and ' his allegations involved only the AEC, .the Commission's defunct predecessor.
SUMMARY
OF ARGUMENT 2
This Board has no jurisdiction to suspend Mr.
l Cherry from the Midland proceedings.
i The Commission has only such authority as' dele-gated to it by Congress. This authority includes the i
4 power to regulate certain aspects of the nuclear energy
-s industry, including the power to hold necessary hearings.
However, the Commission has no power to maintain a sepa- !
rate bar or to discipline attorneys generally.
- Accordingly, the ' Commission's only authority
- over attorneys .is derived frem its implied power to !
maintain order'at its hearings. The precedents make i 1
l clear that this limited authority extends only to pro-scribing . conduct . that is actually disruptive and occurs at'a hearing.
I i
o
's./
. .~ . , , _ . . _ _ - - .- - . _ , -
6 '
T
'y
- 10 _
I. ' In the present case, the conduct of Mr. Cherry
-for which his suspension is sought neither disrupted nor occurred during any hearing. Both the Midland Board and the staff readily concede that- they have no knowledge of the underlying incident oor related circumstances.
- In fact, as previously noted, they both suggest that the matter is so collateral to an'ything before the Com-
' mission that in order to determine what occurred, i t 4-is necessary to undertake an investigation of the un-related proceeding. November 4, 1977 Order, 1 10, i i
January 9, 1978 Transcript, at 79.
.Nei-th,er :tha : Commission :nce this Special cBoard has jurisdiction ta car. duct -such . an inquiry, and both
.I ar-e withoat power to suspend an attorney from a Commis- ,
i i sion pr.oceeding ;on:tha basis of what such an inquiry l may reveal.
s l
l . .ARG.UMENT.
i A. The Ccmmission and this'Special Board
- Can Only Regulate Contemptuous Conduct.
- 1. The Commission Has Jurisdiction to Regulate j ENuclear Power, Not Attorneys.
.The Commission, like all federal administrative -
agencies, ~has only such powers as have been delegated 2-_
(
e a
e w- -
6
, # . \
s I to it by Congress. See Stark v. Wickard, 321 U.S. 288, i l
1 309 (1944). And while an administrative agency may adopt regulations to carry out its duties, these regula-tions obviously cannot exceed the agency's delegated 4
powers. See, e,.g. , Ernst & Ernst v. Hochfelder, 425 U.S. 185, 213-14 (1976); Manhattan General Eculoment Co. v. Ccmmissioner, 297 U.S. 129, 134 (1936); Campbell
- v. Galeno Chemical Co., 281 U.S. 599, 610 (1930). !
J
)
As the Court of Appeals observed in National j Ass' n 'or Regulated Utility Comm' rs v. Federal I Communications Commission, 533 F.2d'601, 617 (D.C.
4 Cir. 1976):
"the allowance of ' wide latitude ' in the exercise of delegated powers is not the equivalent of untrammelled freedom to regulate activities over which the statute fails to confer . . .
Commission authority." -
Congress has granted the Nuclear Regulatory Commission- authority to regulate certain aspects of the nuclear energy industry. ' There is- no need to detail
~
that authority here. Nor is there any need to detail
^
the obvious fact that nowhere in the Commission's ena-bling legislation has Congress authorized the Commission k
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se
< _ __. . __ _ w _ _ ___
Y /3
- 12 -
5/
~
to maintain a special bar or to discipline professionals.
t The reason for Congress' decision not to grant
- any such authority to the Commission is evident. The Commission is expert
- in nuclear energy matters. But j
as the court held'in Kivitz v. Securities and Exchange Cor. mission, 475 F.2d-956, 962 (D.C. Cir. 1973):
"[ Discipline of _ attorneys) is not con-
! cerned with some specialty developed in the administration'of the Act en-trusted "to the ' agency."
l l
5/. The. absence of.-such.expr(ss authority in the. nuclear rigilatory statutes contrasts with its presence in a few other laws. See, e.g., 31 U.S.C. 5 52(f) ( empowe ring aS the Comptroller General to make rules and regulations-A> concerning the practice of attorneys before the General Accounting Office); 31 U.S.C. 5 1026 (empowering the
. Secretary of .the .Tr,easury -to make rules for the recogni-tion of persons repcesenting l complainants, and empowering him to disbar : persons fcom ment); and .35 U.S.C. .5.31 (practicing- empowering the before the Depart-Commissioner of Patents, with .the . approval of the Secretary of
. Ccamerce, to prescribe regulations regarding the practice
- of agents and attorneys before the Patent and Trademark O f fic e ) . Indeed, the Saventh-Circuit's decision :in Koden v. United States Department of Justice, 564-F.2d 255 (7.th Cir. 1977), wnich the staff distributed to the Special Board at the hearing on January 9, 1978, relied on just such an express statutory provision.
The basis of the Court's decision is. stated, as follows:
"It. is elementary that any court or administrative agency which has the oower to admit attornevs to cractice has the authority to disbar or discipline attorneys for unprofessional conduct." Iji. at 233 (emphasis supplied) .
In that case, the Court found express authority in 8 U.S.C. 5 1362 -for the Immigration and Naturalization Service, Board of Immigration Appeals, to " admit atter-neys to' practice." Id. at 233-34 w*
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<3 Rather, such questions come uniquely within the expertise '
~
6/
of courts and bar associations.
Congress has gone further than simply failing
. ' to provide the Commission with general power to regulate attorneys. Through the anactment of 5 U.S.C. 5 500(b)
, in 1965 as part of the Administrative Procedure Act,
- Cong'ress has explicitly prohibited such regulation by 7/
~
administrative agencies like the Commission. The statute provides as follows:
"An individual who is a member in good standing of the bar of the highest court of a State may represent a person ,
3 .
before an agency on filing with the '
LJ agency a written declaration that he is currently qualified as provided by this subsection and is authorized to represent the particular person in whose behalf he acts." 5 U.S. C.
S 500(b).
- 6/ A court, unlike an administrative agency, can in a special. proceeding discipline attorneys for conduct unconnected with a proceeding before it. - See In re Carroll, 416~F.2d 585, 587 (10th Cir. 1969), certs denied, 396 U.S. 1011 (1970). Indeed, a court is the
only authority empowered 'to discipline members of the bar of-that court. In re Carroll, suora, 416 F.2d'at 588; Feldman v. State Board of Law Examiners, 438 F.2d. >
699, 702-(Sth Cir. 197'. cf. Mullen v. Canfield, 105
~~
. F.2d 47s(D'.C. Cir. .19 3. '
7/. Because the enactment of jis statute resulted in a change of law,' cases _decidea prior' to 1965 which found a broader power in agencies to regulate 1 attorney conduct are no. longer good authority.
4
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According to the legislative history, the express 4
purpose of this provision was to prohibit agencies, l
other than those expressly authorized 'to establish bars by other ' enactments, from setting up criteria for prac-4 tice. As described 1Ln the acccmpanying Hou.se Report,
~
- the statute was worded to provide
!. "for the right of persons to be repre-
- sented by any attorney in good standing in matters before . Federal agencies.
- The bill would do away with agency-i established admission requirements a
t for licensed attorneys, and thus allow persons to be represented before
- agenciea hr . counsel .of itheir choice."
i H.R. Rep. :No. ;.1141,- 89th Cong. , 1st Sess. (19 6.5), ir.eorinted -in (19653 U.S.
.y Code'Cong. & Ad; News, pT 4170-71. '
..)
The.Hou,se.Hepo.ct.goes:en to state that:
I s
"The ecmmitte believes'that there is a presumption that members in good standing of the professions of the law anc certified public accountancy are of good moral character, and that
- surveillance by : State bar associations
' and State . associations of certified public accountants will sufficiently 4
ids'ure the integrity. or ' practice by such persons . . . . " Id. at 4173 f
J In a similar vein, iSenator Long, introducing the bill, forcefully stated:
e
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'"5 "If a man is competent to practice
~~
before the supreme court of his ' State, he should be able to practice before a Federal agency. Yet, these agencies impose certain additional tetts or requirements which -have the effect of intimating ' that the attorney's integ-1 rity and professionalism is more subject to compecmise when before the agencies than when before the courts. Such intimations are wholly . unwarranted and at best are self-righteous asser-i tions of superiority." 111 Cong. Rec.
7725 ( April 9, 1965).8/
i It is evident, t h e.'e fo re , that the Commission 1 bas no general. power to regulate attorney conduct.
4 Once an attorney has qualified for admission to the Bar of his or her state, that attorney is entitled to 3
J practice before the Commission and the Commission is 9/
without power to provide otherwise. ~
- 2. The Commission Has Power to Suspend Attorneys Only as Required to Main.
tain Order Durine Hearings
.i Since the NRC has no authority to establish a special bar, its sole source of disciplinary power 8/ This' comment was .made with specific reference to the Internal Revenue Service, which had particularly detailed bility F" rules of practice, but was of general applica-9/ To the extent 10 C.F.R. 5 2.713 is inconsistent with this rule, it is invalid. See Ernst & Ernst v.
Hochfelder, 425 U.S. 185, 213-14 (1976).
e
. , y ,~
^'
would_ be its authority to conduct adjudicative hearings.
This could enccmpass the very circumscribed power to protect a proceeding from disruption. Perhaps, in appropriate cases, this may include the custer of an 4
obstreperous attorney, or even his suspension from the particular proceeding. But it is well established that a suspension by an administrative agency can only occur where an. attorney engages in contemptuous behavior such as would allow a court su=carily to cite the attorney i
for contempt. See 18 U.S.C. 5-401..
1 This limitation on the authority of agencies has been expressly recognized by the federal courts.
]
..) See, e.g. , Securities and Exchange Commission .v. Csapo, l 533 F.2d 7, 11 (D.C. Cir. 1976) ("before the SEC may exclude an attorbey from:its proceedings it must ecme forth . .- . id_th__' conc r e t e evid e n c e ' th'at his gresence would obstruct and impede the investigation"); Graat i
Lakes Screw Corp. v. National Labor Relations Board,
~
409 F.2d 375, 379 (7th Cir. 1969) ~(" Contemptuous behavior is the appropriate ground for excluding a person from the hearing"); Camp v. Herzog, 104 F. Supp. 134, 139 (D.D.C. 1952) ("no person will oe precluded from being represented by .the person of his choice, except in the case in which such representative has been contempuous
. . - , - - , . ~ .. - - - . - ~ .-
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)
J
_ 10/
").
at.a hearing . . .
For example, in Great Lakes Screw Coro., suora, the Seventh Circuit set aside an NLRB order' issued following- the agency's exclusion of counsel for one of the parties. According to-the Board, the removal of counsel was predicated on the -fact that during the hearing.the attorney, Mr. O 'Brien,
" intimidated witnesses by shouting at them, questioning their intelligence, and disparaging their language weak-nesses. Further, throughout the hearing 1 Mr. O'Brien constantly belittled the 1 legal ability of the General Counsel's j representative, harassed the Trial ;
Examiner by a barrage of meaningless '
- '~T and superfluous objections, and ignored I
^ > the Trial Examiner's admonitions di-rected at his disruptive conduct."
409 F.2d at 379.
While agreeing that Mr. O'Brien's conduct "was far from being the paragon of comportment," the court found that I
.10/ Even where it' appears that one or more of the Canons of Ethics may.have been breached, courts are extremely reluctant to disqualify counsel. See , e .g. , W.T. Grant Co. v. Haines, 531 F.2d 671, 677-73 T2d Cir. 1976)
(alleged violation ofE DR 7-104); Lefrak v. Arabian American Oil 1:o . , 527 F.2d 1136 (2d Cir. 1975) .( alleged
. violation of DR 2-103(C), (D), (E) and DR 2-104(A)(1));
Silver' Chrysler Plymouth. Inc. v. Chrysler Motors Coro.,
518 F.2d-751 (2d Cir. 1975) (alleged violation of Cancns 4 and 9); 'C e ramc o , Inc. v. Lee Pharmaceuticals, 510 F.2d.268 (2d Cir. 1975) (alleged violation of Canons 5,.7 and 9).
l 1
. M_. rny
.s it fell "shortLof constituting contemptuous behavior."
409: F.2d atL380. Accordingly, the-court held that the .
, Board was without power to suspend O'Brien.
The Great Lakes Screw Coro. decision-establishes that . extraordinary misconduct must be present to warrant
~
~
- a finding of' contemptuous conduct. The elements of such misconduct are
i
- "1) Intentional conduct constituting
- 2) misbehavior. which causes 3) an actual i
and material-discuotion or obstruction of the. administration of justice 4) within the court's cresence." United
. States. v. Oliver, 4-7 0, F . 2d.10, 12 (7th
- Cir. 1972h 4 emphasis
- in; original) .
' . . i fj See also Harris. s.. United States,- 382 U.S. 162, 164
- . 11/
(1965); Fed. R..Crim. P, 42(a).
11/ In order. to. be found.. con _temptuous, behavior must
- Actually imbea~e' thb' abi'litybr~ the court to conduct the_ particular proceeding. Thus, it has been held -
-repe a et dly--trhat-
" mere'. disrespect or insult cannot be punished where:it does het involve an actbal and material obstruction."
In re Dellinger, 461 F.2d 389, 400
- (7th Cir. 1972).
4 SimiAarly, the courts have noted that
" Trial courts .-. . must be on
-guard against confusing offenses to their-sensibilities with obstruction:
-toLthe. administration of justice."
' Brown v. United - States, 356.U.S. 148, 153r(1958). l k
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- -Every judicially sanctioned suspension of counsel
- by an- administrative 1 agency of' which we are aware has satisfied- these requirements. See Ubiotica Coro. v.
Food and Drug Administration, 427 F.2d 376, 382 (6th I
Cir.'1970) (exclusion ' of counsel from active partici-l j pation ' upheld where the record supported a finding that-j " counsel -had deliberately refus.ed- to follow the direc- '
i
, tions of the Chair to the point that an orderly hearirg was impossible"); Okin v. Securities and Exchange l
l
! Commission , 137'F.2d 398, 401 (2d Cir. 1943) (counsel's l
l on the record " anger increased until eventually the k
- proceedings 1.ost all decorum"); Camo v. He rz o g , 104
)
- F. Supp. 1341 (D.D.C. ; 1952) (unprovoked physical assault in the hearing lon attorney for General Counsel of NLRB).
l Nor is it difficult to understand why the authority of the Commission, or of any similar adminis-
. l l trative _ agency, to suspend attorneys is so limited. I
- \
First,1 suspension of an attorney during the courseoef'a proceeding interferes with his client's 1
~
right,to' counsel. The right to be represented by counsel r -
of 'one's"dhoice in an ' administrative proceeding is granted-by statute and'is expressly recognized by the
' Commission's regulations. 15 U.S.C. 5 500(b); 10 C.F.R.
L l
4 l
_ _ __ _a _ - _ ___ __ _ _ - - - _ - _ .
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3~
5 2.713(a). See Great Lakes Screw Coro. v. National Labor Relations Board,Esuora, . 409 F.2d at 381; Securities
- and Exchange Commission v. Higashi, 359 F.2d 550, 553 (9th.Cir.-1966); Backer v. Commissioner of Inte.aal
, Revenue, 275 F.2d 141, 144 (5th Cir. 1960). Thus, as i
the Appeal. Board emphasized in Toledo Edison ~Co. (Davis-i'
. Besse Nuclear Power Station, Units 1, 2 and 3), ALAB-j 332, 3 NRC 785, 800 (1976), attempts to. suspend ccunsel
- i. from a proceeding before the Commission "present issues l of: great sensitivity and importance," not least because
! *[t] hey could result in depriving a party of the right to be represented' by the law firm which is his first l
!, - choice." Y 1
12/ As .previously described (pages 2-4, suora) this
} concern 1's particularly_ crit 1'c al"in the - case of Mr.
Cherry's clients. 'While Consumers is represented'by 3 2 a large firm and - housei counsel, ahd the Commission is represented by a11arge legal staff, the Saginaw Inter- .
venors have been' represented for ~ the last eight years by,one. lawyer at a reduced fee or no fee. Moreover,
~
l for most ofEthat time, the Saginaw.Intervenors have
.been the sole ' a'ctive party' in the proceeding opposing
-th'e grant of the license. LThus, the attempt to suspend- l l Mr.-Cherry _from.furtherl participation in'the Midland l l proceedings may deprive Intervenors not merely of their i, chosen, but of their'only, counse1~and' deprive the
~
Midland-Board of a-second point.of view. Indeed, the Midland Board.has;already pointed out the unique value i s .of the Saginaw Intervenors' contribution. See February
~
)
25, 1977 Order, -1: 1, quoted at p. 2, suora..
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.' .of the United States Constitution, from which the criticism :of judges (or administrative hearing officers) has not been carved out as an exception. See Wood v.
Georgia, 370 U.S. 375,'393 (1962); Craig v. Harney, j 331 U.S. 367, 376 (1947);14/ Bridges v. California, 314 U.S. 252, 270 (1941). It has been recognized that the Constitution limits the power to proscribe attorney 4
[
conduct where speech' is involved. See, e,.g., In re 3
Sawyer,-360 U.S. 622, 636 (1959); Chicago Council.of Lawyers v. Bauer, 599 F [24: 2JUL,- 257 (7th Cir. 1975),
i cert. denied, 427.U.S. 912 (1976) ("We read the Supreme Court gsnera.1 Mampt cas.es as: indica-ting that t'he (l- Iirst Amendment'does not 'auth'orize restrictions on ' pure speech' lby lawyers] merely. for the purpose of protecting
] judges frem criticism");; Chase y. Robson, 435 F.2d 1059, i 1061 (7th Cir. 1970); .see also. Polk v. State Bar of Texas, 374 F.Supp.-784, 787-88 (N.D. Tex. 1974). Indeed, in Chase v. Robson, supra, the court held that "before
- a trial court.can limit . . . attorneys' exercise of 34/ "f,T3he law of conte =pt is not made for the pro-tection of ' judges who may be sensitive 'to the winds Lof public opinion. Judges are supposed to be men of
~ fortitude, ablefto thrive in a hardy climate." Craig, supra,J331 U.S. at 376.-
H 4 1
e
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-s '
- first amendment rights of freedem ' of speech, . the record must'contain sufficient specific findings by the trial
, court establishing that . . . [the3 attorneys' conduct is 'a serious and imminent threat to the administration of ' justice. ' " 435 F.2d at .1061.
t In summary,1the Commission's rules, set forth l
h .at 10 C.F.R. 5 2.713, constitute a valid exercise of j the Commission's power only if they are limited to the l suspension' of an attorney for conduct at a hearing which is so' egregious that, unless the attorney is permanently.
removed from the proceeding, the hearing could not
. reasonably ~ proceed further. Short of such circumstances, 3
.l > the Commission is without power to suspend an; attorney from a proceeding in which he is participating. There-f ore, insofar as 10 C.F.R. 5 2.713 purports to permit j suspension .from a proceeding for conduct which, as in
. this case, did not occur in'the presence of the hearing l panel, and ' which is neither related to ,nor substantially l i . obstructed that proceeding, the regulation is ultra f- 15/
vires. -
- 15/- Toledo' Edison Ccmoany (Davis-Besse Nuclear Power Station,; Units 1, 2 and 3 ) ,. ALAB-3 78, 5 NRC~557 (1977),
ALA B-3 32, 3 NRC.785 (1976),. _may not be read to imply that the Commission has broader jurisdiction to dis-qualify 1 counsel on ~ the basis Hof events which did not
- occurlin the-presence of a hearing board.
That case,
. . -= - . - - . - . - . .
q B. Mr. Cherry's Alleged Conduct Does
. Not Fall Within the Commission's Power to Discioline Attorneys.
It is absolutely clear that the Commission is without authority to suspend Mr. Cherry for the conduct upon which the present charges are based.
First, Mr. Cherry's statement conc erning the conduct of certain members of a board established by
. the AEC -- an agency.which went out of existence 'in J 975 -- did not obstrue.t. the proceedings before the
- Midland Board. This is plain fromt the fact that the
) Midland Board delay &d.some.seven months until.after i'- -) the completion of the pending hearings and the entry 4
l [ Footnote continued) of course,-involved the totally different question of i whether counsel should be permitted to represent a party 1 in a proceeding,:when the same counsel previously had represented a party with adverse interests in another 1 proceeding and the former client opposed the new l
, representation. Obviously, the propriety of.such l
1 representation substantially affected the right of the l parties to . receive a fair hearing and necessarily )
involved the exploration of what had occurred. in connection with the earlier and substantially related matter. Even in that case, the Appeal Board noted that
'" to be sure, it is not for the Commission 1to punish SS&D . . . 3 NRC atfor_6.some 79 pa,st _ asserted wrong doing .
Moreover, as tne opinion correctly pointed out, courts do disqualify attorneys in the case of conflict of interest. Notably, however, courts do not suspend attorneys from representing their clients in L mid proceedings, or discipline them in mid-oroceedings for conduct which is not punishable through the summary contempt power. .See note 10, suora.
d
A of its order with respect to that entire aspect of the proceedings, before entering its order regarding the alleged' misconduct.
.In a strikingly similar situation, the Seventh Circuit set aside a contempt ~ citation against an attorney based on his unflattering characterization in the courtroom of the presiding judge's evidentiary ruling. !
l Parmelee Transoortation Co. v. Keeshin, 292 F.2d 806 l (7th_Cir. 1961), rev'd on other grounds, 370 U.S. 230 l
(-1962). In its opinion, the Seventh Circuit observed that: !
l 3 "The [ trial] court waited more than
/ five months after the alleged contempt had been committed, and only then-specified-the contempt charges and .
entered the order from which this appeal has been taken. The very fact that in the meantime various croceedings, including a long-drawn-out trial, had oc cu r r ed', is rather conclusive evidence tnat these words of respondent in no way obstructed the court in the cer-formance of its judicial duty, an element that must be clearly shown in every ' case where the power to punish for criminal contempt is exercised."
292 F.2d at 810 (emphasis supplied).
In the present case, far from finding that Mr.
Cherry's conduct impeded the proceeding, the Midland Board expressly held that the public interest would
h
~)
- 26'--
~'
be frustrated' and .the proceeding hindered if it devoted its attention to the collateral issues of attorney conduct rather 1than the ecmplex sub'stantive matters .
2 before it. See June 15, 1977 Memorandum, a t . 5-6. In point of fact,.in its motion seeking Mr. Cherry's 5
suspension, the staff emphasized that it did' "not .believe i that there is a need_to disrupt the conclusion of this !
i o suspension proceeding'by the institution of these charges l
. . . . May 9, 1977 Transcript, a t 5221. Thus,, even l I the party initiating the charges has conceded that the t ,
j hearing would be impeded by its own attempt to disqualify Mr. . Cherry, not by his continued participation. l 1 '
~:) . Second, it is undisputed that Mr. Cher.ry's
-l j ,
comments did not occurf in1the : course of the hearing I
$ or in . the . presence .cf the Midland ' Board. Although the l Board members received copies of the correspondence l addressed to Staff Counsel, -the sole references to the i -
matter on-the nearing record are the remarks by counsel i
. l
]
for the st'aff, echoed by counsel for Consumera . Power, j on a day when Mr. -Cherry was not even present.
) Mr. Cherry's conduct simply does not satisfy, '
g .and is~not even alleged to satisfy, the standards
- discussed earlier .which must be met before. the Commission 4
im 3
LAW CFFICES
-]
'N HoMINERS, FORT, SCHLEFER & BOYER 00E sto.esNges 4774 F STRCCT, NORTHWCST ^
JIMM CUMMINOMAM WASHINGTON, D. C. 2 0 0 0 6 CAsLE Acoatss*MAmLAw'
- MAE18 P. sCMLCFER J. ALTON GOYEN A2 N O MUTSON :
Msf MAEL JCsEPM
< Mi"Ct?.**^" ... J..
4*J3 CMC P. MILLER ALICE M. ORAN
- E"AM** :,ON \"
TMCMAS L MILLS March 9, 1979 Valentine B. Deale, Esquire Chairman, Atomic Safety and Licensing Board 1001 Connecticut. Avenue, N.W.
Washington, D. C. 20036
Dear Mr. Chairman:
bb This.is in response to your request, in. furtherance of !
the Commission's'. requests (its letters'of January 30, 1978 and February 8, 1979), for suggestions as to how the
-Commission?s regulations for handling disciplinary matters might be improved . - I respond to this request with diffi-dence. because the special proceeding .recently terminated
~ in which we - took - part constitutes my . entire experience in-disciplinary proceedings of the Commission and ny entire
. experience - in disciplinary proceedings in - federal regulatory agencies. -In a. desire. to be helpful I of fer the f ollowing comments, which, however, are heavily influenced by that limited J experience.
The special. proceeding was conducted under section 2.713 of'the Rules of Practice (10 C.F.R. S 2.713 f1977)),
which authorizes presiding officers to suspend or'bar participation by- attorneys in 'a proceeding upon specified grounds, and further.provides that before any person is suspended or barredicharges shall be preferred by the presiding of ficer against 'such person, who shall be afforded an opportunity to be heard thereon by another presiding officer.: I. am aware of no ' regulations ;of the Commission expressly providing'for the procedure in a hearing under section-2.713.. Hearings in - the recent proceeding would ,
if - the . proceeding had not been settled , have been conducted,
~
g 4
,. - -w - e.-,b sw -
s
~
. ,; . ;. 9 '
i)
- W Valentine B.;'Deale, -Esquire-
!J l March 9,;1979'
- : Page Two I '
as I understand jit, under the Rules of Practice generally applicable to proceedings underLthe Atomic Energy Act of 1954,-as amended, and the Energy Reorganization ' Act of 1974.
j-
~
Although ' the Commission's requests- for suggestions as to. improvement- of its rules imply that it.may be dissatisfied with theLoperation of section 2.713 or :with ~ the procedure p under the~. general hearing rules in this case, I see no
[ occasion to change .the - rules. I share a feeling of dissatis-L faction with the invocation of section 2.713 in the recent j case because of the expensive and protracted proceedings c which ' apparently would have taken place had the matter not
- been settled . While , on the one hand , this might suggest l the advisability of 'considering more summary procedures,.
t
- on the other' hand the issues would in all likelihood have .
i turned upon .the credibility of witnesses, and in such a i
case a summary procedure might well be inappropriate, and
! there may be no satisfactory (or lawful) alternative to a
- proceeding comparable to the trial of an action at law.
- [ ~) . The ponderousness of -the proceeding might, in my opinion, i' -have been avoided by more -careful consideration initially
[
of the-advisability of' proceeding under section 2.713. - The events giving rise to the charges 1 constituted exchanges of f
correspondence in the nature of motions or requests for l relief in the underlying proceeding (In the Matter of 4
Consumers Power Company (Midland Plant, Units 1 and 2)
Dockets 50-329, 50-330). Section 2.718 (10 C.F.R. S 2.718 l- ,
,(1977))1 authorizes _the presiding officer to regulate the
- course of the hearing and the conduct of the participants
~
i- in~ such 'a ; proceeding. ' That rule, requiring no hearing
[ before another presiding officer and prescribing no forms p of procedure, would in my1 opinion- have amply authorized 2
the presiding officer 'in- the underlying proceeding to stop j: summarily the conduct that gave rise to the charges, and to'stop it at its1 inception.- Had the presiding of ficer acted ; forcefully :to that 'end, there is in my opinion every7 likelihood that no occasion would have arisen for 1 proceedings 1under section-2.713.
- _ The.-power to
- regulate -the course of the hearings and the !
conduct'of participants is so substantial that t it is hard l _to conceive that -if the power were exercised forcefully ;
and judiciously, . the Lattorneys would have persisted in the
, particular conduct --in question to a point' necessitating
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.g . Valentine B.1 Deale , Esquire
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March 9, 1979-Page'Three l
4 disciplinary' proceedings. I conce"ive that in a given cir-cumstance the. presiding . officer would be in a position, if circumstances warranted , to go_ so far as to bar: from a -
, hearing a party ' represented tur a contumacious attorney.
Many less drastic types _of regulation might be imagined.
, Such powers, . wisely . used , might well have: obviated- the need
~for resort to disciplinary proceedings.
Had: these powers been exarcised and found insufficient, then1and only then should disciplinary action. have been-considered. . Moreover, although this opinion is influenced
-by my< position as counsel for the staf f lawyers charged, the charges against them seem_to me to have been unwarranted F Liniany event.- Although giving a superficial appearance of evenhandedness the making of charges against the staff
- attorneys as well as ' the private attorney concerned evidences a failure-on the part of .the presiding officer who preferred' the charges to exercise a sound and wise
! discretion in the selection of cases'in wh'ich to wield I that : ponderous weapon ~. The charges 'against' members of the
. staff seem to me to have been' frivolous and if disciplinary
- I ), proceedings were -deemed appropriate they might well have omitted all charges but those having substance. 'It goes
- almost without'saying that the presiding of ficer, like a l' prosecutor or disciplinary arm of the bar, has under exising rules a broad -discretion in the selection of charges to be preferred, and may refuse to prefer charges that, even :
though in form'.they may state grounds for discipline, clearly !
lack substance. )
1 Inishort, it is my view that the Commission 's- regula- !
e tions for handling ' disciplinary matters need no revision. l The decision to- invoke those regulations, however, must be ;
i made with care and 'with 'due ' consideration of available alternatives for insuring that the Commission 's business is conducted with dignity and decorum.
Yours trul ,
- ~
&g4fAr T. S. L. Perlman cc : ' Gary;L.oMilhollin,. Esquire-i Miss Margaret M.-Laurence Thomas. F.f Engelhardt, Esquire William J.EOlmstead,' Esquire.
David Bonderman,1 Esquire i.
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.5. - WASHINGTON, D. C. 20555 6
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[ + March 16,1979 Valentine B. Deale, Esq. . Margaret M. Laurence, Esq.
1001 Connecticut Avenue, N. W. 5007 King Richard Drive
~
Washington, D.1C. 20036 Annandale, Virginia 22003 Gary L. Milhollin, Esq.
1815 Jefferson Street j Madison, . Wisconsin 53711 4
Dear Sirs and Madam:
. This responds to your request of February 23, 1379, in response to l
Chairman Hendrie's earlier request, for commente as to how the-Conraission's regulations for handling attorney disciplinary matters
- in adjudicatory proceedings might be improved.
Tne NRC regulations in 10 CFR f 2.713 presently provide that a presiding officer may, by order, suspend or bar any person from participation as an attorney in an NRC proceeding for enumerated reasons. This regulation j
i -
requires that the presiding officer's order shall state the grounds on h>y which it is based. It also provides that before any attorney is suspended
- or barred from participation in a proceeding, charges must be preferred
,' by the presiding officer against the attorney and the attorney afforded !
an opportunity to be heard on.those charges before a second presiding . j officer. l s
In the view of the NRC Staff, the provisions of 10 CFR H 2.713 when coupled
~
j with the. broad authority of 10 CFR S 2.718 "to maintain order" are gen- i i- erally adequate tools for a presiding officer to control the conduct of i participants in a proceeding. ' Experience in .he Midland Special Proceeding, !
however, suggests that certain improvements in 10 CFR 5 2.713 may be l
warranted. l e
In the . Midland proceeding, charges were levied by attorneys representing l the NRC Staff and Intervenors against each other. These bare charges l served as theLbasis for the referral to the second presiding officer. No j 1 findings were made on these charges by the first presiding officer before l refe ral and no apparent effort was made' by the first presiding officer to assess the validity of substance of the charges before referral. Accord- .
ingly, the second' presiding officer was presented with assorted unevaluated l' charges. for consideratio'n. This resulted in an unnecessary amount of confusion,1 delay and effort in identifying the charges to be heard by the second -presiding officer. and in effectively ' dealing with the charges in an expeditious . fashion.
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This problem could have been avoided if 10 CFR I 2.713 had required a threshold showing as to the validity of the charges of misconduct by those making them 'and formal findings by the first presiding _ officer on ,
those charges before the matter was referred tu the second presiding officer for _ hearing. The hearing before the second presiding officer could then have been focused on those charges which the first presiding officer had determined were of substance and ripe for being heard.
In view of our experience in the Midland proceeding with the application of 10 CFR H 2.713, it would be our recommendation that the regulation be re-vised to provide criteria for threshold showings by charging parties and to require the first presiding officer to make formal findings on the validity of those charges before referring the matter to the second presid-ing officer to be heard. Such an improvement in the regulation would tend to remedy the problems experienced in the Midland proceeding.
Sincerely, nf '
)) Thomas F. Engelhardt Deputy Executive Legal Director i
.v.i.4..
William J. Olmstead Counsel for NRC Staff cc: T. S. L. Perlman, Esq.
Milton V. Freeman, Esq.
Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Appeal Panel Docketing and Service Section
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' UNIVERSITY OF WISCONSIN-MADISON m 1 1 LAW SCHOOL ~
Madison, Wisconsin 53706 April 24, 1979 Valentine B. Deale, Esq.
1001 Connecticut Avenue, N.W.
Washington, D. C. 20036
Dear Val:
Re: Consumers PoverCompany (Midland Plants)
Nos.50-329SP,50-330SP (Special Proceeding).
I am writing this letter for inclusion in the package of documents you will be sending the Commission on the subject of disciplining attorneys who appear before licensing boards. Since I do not have nearly as much experience with licensing proceedings as do many others the Commission might consult, I.have limited my remarks here to the legal issnes whieb arose during our brief "special proceeding." I have arranged my thoughts under five head-() ings.
- 1) Power to Impose Sanctions Under NRC Regulations
- Under its current regulations (10 CFR 55 2.713, 2.718) NRC's power to impose sanctions upon an attorney is confined to the context of a parti-cular proceeding. Section 2.713 provides that an attorney may be suspended "from . . . a proceeding" for certain types of misconduct, and Section 2.718 empowers a presiding officer to " regulate the course of the hearing and the conduct of the participants." There does not, however, appear to be any l power in the regulations to suspend or disbar an attorney generally from NRC !
practice. If an attorney should commit an act sufficiently serious to warrant i general suspension or exclusion, the only method for imposing such a sanction
~
would be to request an order barring the attorney from each proceeding in which i he sought to appear. This remedy, already cumbersome, is burdened further by the additional. requirement in 5 2.713 that
)
"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."
The effect is to permit.an attorney to continue appearing before the NRC until the-second (disciplinary) board renders a decision on the merits and any sub- ,
sequent-appeals are exhausted. By that time, the proceeding from which the
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Valienine B. Deale, Esq.
~
LApril 24, 1979f
- Page two attorney was sought to be barred may have been concluded, or the attorney' may 'l have withdrawn from that proceeding. When.either of_the latter two events i ~ occurs,.there is a strong ~ argument that the disciplinary issue is moot since the discipline must relate to
- the particular proceeding in which the attorney
- was .'? charged." Of course,~1f the attorney sought to enter-another (third).
. NRC proceeding,' charges -(based on the misconduct in the prior proceeding).
. could be preferred again'by the officer presiding'over this third proceeding and referred (presumably) to yet another disciplinary board. Perhaps this
- second disciplinary board could take up-where the first disciplinary board
!^ ~1 eft off. This all.seems. unnecessarily confusing and ineffective. A first
- step.toward improving these procedures would be to separate the concept of i
- ~ control over a particular proceeding from the concept of general suspension i
- or disbarment from practice before the NRC. l
- 2) Preferring Charges and the Burden of Proof According tt, the Appeal Board's opinion in the Davis Besse case
(.ALAB-332;' 3 NRC 785) = the officer presiding over a proceeding, upon being
_ presented with an allegation of^ attorney misconduct, "should simply deter-mine whether the allegations made by the moving party, if true, would make a case for disqualification." 3 NRC at 793. Un-ler this construction of 5 2.713, the presiding officer's functionis made similar to that of a federal judge presented with a motion to dismiss under Rule 12(b)(6) of the Federal Rules-of Civil Procedure. If the allegations state a claim,
. .the' matter is automatically. referred to a special board. The Appeal Board
.also ruled in Davis Besse that the person or party makin , an allegation of misconduct "has the burden of proof and must go forward initially with the presentation of its evidence" 3NRC at 800. Taken together, these two requirements -- that charges be preferred when a claim is stated and that the accuser has .the burden of proof - produce awkward results. First, a special board must be convened regardless of how little factual basis there might be for an accusation. Charges " stating a claim" must always be referred.
Although a suspension action against an attorney is very much like a " prosecution,"
there is no.one who can decide whether the evidence is sufficient to take.the case before ' the special- board, or whether the misconduct is grave enough to
- warrant suspension from practice even if proved. If, as in Davis Besse, one of the parties to:the proceeding has a private interest in excluding the attorney who has been accused, then that party can be expected to evaluate i
the strength of-the~ evidence before going before_the special board, can be
. expected to evaluate the likelihood.of obtaining adequate relief, and can be assigned the" burden oftproof. Suppose, however, that the accusation is made j . by a Lprivate -citizen or ' group which is not a party to the licensing proceeding.
4 Should the f' complaining witness" be expected to evaluate evidence, weigh the likelihood of an adequate' sanction, or bear the burden of proof? In the Midland i.
' Special proceeding no one appeared to '_' prosecute" the charges made against -
l the attorneys for-the NRC regulatory staff. The charges against those attorneys
, had been preferred - (automatically) by the licensing board. Should a government c.2 i.
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April 24, 1979 Page three~,
agency which'has' preferred charges against its own attorneys be prepared to ,
dismiss those charges unless a private citizen will bear the expense of their i . prosecution? In Midland, the NRC staff attorneys -- caught in this problem --
i stated that they could normally be expected to maintain such a prosecution, but that they had been unable to find any evidence of wrongdoing by their colleagues.
..The lesson from Midland is'that 5 2.713, with the Davis-Besse gloss,.
can work.only when one of. the parties to the licensing proceeding has a special interest-in seeking a remedy against an opposing attorney. When a member of
' the public complains, there is no machinery for evaluating the strength of the evidence, the likelihood of a remedy, or for carrying the _ case forward.
i Obviously, NRC cannot expect any of this from the complaining witness. It 1
- would seem that in such cases NRC has the same institutional interest in the ' l integrity of those who practice before it as do the courts. In disbarment i proceedings before the courts, a prosecutor is named for the purpose of evalu- )
ating the evidence against an attorney and deciding whether to carry the case I forward. ;NRC could adopt a similar. device. Such a "special prosecutor" would l appear especially necessary whenever misconduct is charged against attorneys j i for'the NRC staff.
- 3) General Statutory Power to Impose Sanctions i . Under the governing judicial interpretations, an agency which is granted t' -
general statutory power to conduct adjudication- has the power to exclude
, attorneys from practice before it for misconduct. This is true even though the agency has no power to. establish a separate bar or roster of attorneys, and even .though the misconduct does not occur in one of the agency's proceed-ings'. The cases are: Goldsmith v. U.S. Board of Tax Appeals, 270 U.S. 117, 46 S. Ct. 215, 70 L. Ed. 494 (1926), Herman v. Dulles, 205 F.2d 715 (D.C. Cir.
1953), Schwebel-v. Orrick,153 F. Supp. 701 (D.D.C.1957), In re Carroll,
- 416 F.2d 585 (10th Cir.1969), Koden v. United States Dept. of Justice, 564 F.2d 228 (7th Cir. 1977). Although these cases establish that NRC has the power to disbar or suspend an attorney from practice before it, NRC does ~not appear to have exercised this_ power under its regulations. Since the regulations do provide. specific procedures for suspending 'an attorney from a proceeding, it is doubtful.whether the NRC could or should exercise this general, " inherent" power to suspend or. disbar without amending these specific procedures. If
, the Commission should decide that it wishes to exercise a general power to suspend _or disbar, the' arrangements for doing so should operate independently of any particular proceeding in-order to avoid the difficulties mentioned in point "1" above.
- 4) Specific Power to Control Individual Proceedings The presiding officer's general power to control proceedings, maintain
.. order.. avoid delay,.etc., is found in i 2.718.
The power' granted here is l probablyl adequate to control attorneys in most circumstances, especially if
_ combined with the power to draw negative . inferences of fact whenever an 11 attorney hinders the resolution of-particular issues. Ihe presiding officer's response to a specific' instance of misbehavior will of course depend upon
M '
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- Valcutina B. Dealo, Esq.
Apr11124, 1979
.Page'four.
g -
what seems' appropriate for the moment -and the circumstances. A varning, or a statement that the attorney is " censured," may solve.the problem or may be
.a waste of breath. The presiding officer has no power to fine or punish for contempt.- There is, however,- one solid piece of ' ground upon which the pre-siding officer may stand. .He must, in order for the hearing to' proceed, prevent conduct which obstructs it. If the officer's response is fashioned
.to this end, and so appears'in the record, then a reasonable measure designed to preserve the proceeding would probably, be upheld. By way of guidance to
. presiding officers, . it might be useful' to add to the general language of 5 2.718 some. specific examples of sanctions which are effective in preventing the obstruction of proceedings. The sanctions could range from mild to severe, and would be designed to supplement rather than replace the inge-nuity of the presiding officer. By publishing specific sanctions, the Commission might also deter. misconduct and strengthen the presiding officer's hand.
- 5) 3ugpstions u for Improvement As the'above discussion points out, the present regulations have the following weaknesses:
'(a) there is not power to suspend or disbar an attorney from
- appearing generally before the NRC
(~ j (b) the suspension power now in the regulations can affect only the proceeding before which the attorney happens to be J currently. appearing (c)- there is no person responsible for evaluating or carrying
~
forward allegations made by a member of the public, or for.
handling allegations made against attorneys for the NRC staff a (d) the power of the presiding officer en control a proceeding is stated only in terms so general as to provide no guidance to an officer confronted with a particular instance of mis-conduct.
The Commission should designate someone to do the legal research necessary to establish ;the boundaries 'of the Commission's disciplinary power under its statute. This-would require a close reading'of the cases cited in item "3" above and probably.a search for other appropriate legal authority.
Then,-in order to avoid the difficulties mentioned in "1" above, the regula-tions should ~be' amended mo as to sever the' procedure to suspend or disbar from - l
.the sanctions. appropriate to control an individual proceeding. To control l La -proceeding, . sanctions must apply immediately within the proceeding' itself.
-" Preferring charges" to-be heard by'another board at some later time may not change conduct which the presiding officer finds inimical to his own proceeding.
In short, the rather. elaborate due process" afforded by the special board is not really appropriate to the-control of a proceeding; instead, the "special.
^~
iboard procedure s_eems to be 'the kind-~of procedure required in order to suspend or disbar generally from practice. It.is.hard to understand why the present regulatio'ns 'use the' special board device to control a ' proceeding -- where it
~
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Valen: ins B. Deals, Esq. .
April.24,-1979
. Page five can:ot, work - rather than using it : to satisfy 'due process requirements for suspension or disbarment, where it-is necessary. Whoever drafts amendments to these~ rules should consider using.the "special-board" device for suspension or disbarment, if such a power is created, and should also consider substi-tuting a list of summarily-imposeable sanctions for the control of -individual proceedings. This should be at least a start in the' direction of overcoming weaknesses (a), (b) and (d) above.
In order to over come weakness (c), the Commission should authorize the appointment of an independent attorney to whom complaints' could be made.
This sould extricate the staff from the awkward position of prosecuting its own membership,=and would provide a means for evaluating both the evidence underlying allegations and the seriousness of the offense before a special board is convened. It would also funish someone to carry forward allegations made by members of the public who have no special interest in the remedy sought. The device of an independent attorney is, of course, common in disbarment proceeding; before the courts.
I hope these thoughts are helpful to the Commission.
Sincerely, dy Gary Milhollin m
GM:dr CC: ' Mr. James R. Yore, Chairman Atomic Safety and Licensing Board Panel United States Nuclear Regulatory Commission Washington, D. C. 20555 i
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~ RESPONSIBILITY WRITER'S DIRECT TELEPHONE NUMBER (312) 3VL r
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'"'####"An##E$ISI March 26, 1979 REARCH AND DEVS Nt Valentine Deale oINET.ns.S'E.7"r rE4acfr#2'2$ noo w us '1001 Connecticut Avenue N.W. )
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Dear Mr. Deale,
ETHICS AND PROFESS A
" "*"' D * **"'*a I hasten to respond to your March 1 inquiry relating I$3.#d s'a*l*o##"d oi to lawyer discipline by the Nuclear Regulatory Commission.
Should you wish to discuss these points further, please contact.me, but in the interests of time I have outlined my points below.
- 1. Sec. 2.713 (b) : Each " court of the United States" has separate authority to establish rules of conduct for lawyers practicing before it. If the NRC enforcing 100-odd different standards?
- 2. Sec. 2.713 (c) : The NRC appears to have authority to suspend only for an individual proceeding, not for subsequent proceedings.
- 3. Sec. 2. 713 (c) (3) : This seems particularly vague and in need of clarification, particularly when DR l-102, apparently subsumed in 2.713 (c) (5) ,
refers to much the same thin'g in different language.
- 4. Sec. 2.713 (c) (4 ) : Given DR 7-101, 7-102, and 6-101(3), what does " dilatory tactics" add?
- 5. A lawyer is to be given an opportunity to be heard.
Not answered Ere the following:
- a. Is the lawyer entitled to counsel?
- b. Is the lawyer entitled to both briefs and oral argument?
- c. Who is the opposing party, e.g. the presiding officer?
-d. What standard of proof is employed?
- e. What rules of confidentiality apply?
- f. What steps are taken to protect the rights of the lawyer's clients pending determination of the conduct charges?
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- g. Is a. determination of misconduct forwarded to other~ jurisdictions in which the lawyer-
'is :: admitted?
.h. Is an appeal available?
- 6. Is there no-discipline against.nonlawyers appearing as counsel in these proceedings?
This may be~a. violation'of equal protection.
- 7. Sec. 2.713 does not clarify the differences, if any, of the presiding officer's role in a discipline situation. Dis 6ipline is-not listed here as one of his powers.
In general I think a thorough study of the concepts and procedures in the Lawyer Standards are called for here.
Sincerely, -
UA/
M. L. Proctor cc: Joh n C. McNulty l,N/ William Warner
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UNITED STATES OF ANERICA . I':
NUCLEAR REGULATORY COMMISSION ?
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In the Matter of ) M
) b CONSUMERS POWER COMPANY ) . Docket No.'(s) 50-329.50 -E
. .. ) 50-330.90 M
' (Midland. Plant, Units 1 and 2) ) @
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I hereby certify that.I have this day served the foregoing docu:nent(s) @
upon each person designated on the official' service list conspiled by N.!
the Office of the Secretary of the Comission in this proceeding in 55
.secordance with the requirements of Section 2.712 of 10 CFR Part 2 - .M Rules of Practice, of the Nuclear kegulatory Comission's Rules and
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Regulations, g 5
. 54 Mi Dated at Washington, D.C. this g day of 197 . 5
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In the Matter'of ) . :. :.,
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Valentine B. Deale, Esq. ' Harold F. Reis , Esq . . ,(,fh 1001. Connecticut - Avenue., N.W. Lowenstein, Newman, Reis &- Axelrad . E Eg Washington, D.C. 20036 1025 Connecticut Avenue, N.W. { ,:3 Washington, D.C. 20036 g Margaret.M. Laurence, Esq. E,J:.'.4 5007 King Richard Drive '
Judd L. Bacon,. Esq . :'
Annandale, Virginia 22003 Consumers Power Company ' zer 212. West Michigan Avenue ='-
Gary L. Milhollin, Esq. Jackson, Michigan .49201 .-
- . :. 1815 Jefferson Street- ., ,,gg Madison, Wisconsin 53711 Joseph Gallo, Esq. ;@a Isham, L'iitcoln & Beale . ina-;
William' J; Olmstead, Esq. 1050 - 17th Street, N.W., Suite 701 El[5 Thomas F. Engelhardt, Esq. Washington, D.C. 20036
'":s Counsels . for NRC Staf f . If E U.S. Nuclear. Regulatory Co=miss ion ' Michael I. Miller, Esq . 5..
Washington, D.C. 20555 . Caryl A. Bartelman, Esq. ;v='.
Isham, Lincoln & Beale ~ "35%
T .S .L. Perlman,- Esq. One First National Bank Plaza h=El 1776 "F" Street, N.W. Chicago, Illinois 60603 Washington, D.C. 20006-
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Myron M. Cherry, ' Esq.
ATTN: Mr.~ S.H. Howell : E5 One IBM Plaza .
Vice President j#i Chicago, Illinois; 60611- 212 West Michigan Avenue Y[i.
Jackson, Michigan 49201 h.,,.b g,
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. David Bonderman, Esq. iM:iis Arnold and Porter-1229 --19th Street, N.W.
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