ML19350C920
| ML19350C920 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 04/07/1981 |
| From: | Wolfe S Atomic Safety and Licensing Board Panel |
| To: | TEXAS PUBLIC INTEREST RESEARCH GROUP |
| References | |
| ISSUANCES-CP, NUDOCS 8104100295 | |
| Download: ML19350C920 (5) | |
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D0 hum UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION usNRC R
APR 81981
- i Atomic Safety and Licensing Board office of the Secretmy Before Administrative Judges:
4 N'
b Sheldon J. Wolfe, Chairman N
Dr. E. Leonard Cheatum, Member Gustave A. Linenberger, Jr., Member SERVED4PR 8ygg7 In the Matter of Docket No. 50-466 CP HOUSTON LIGHTING AND POWER COMPANY (Construction Pennit Appl nF,
(Allen Creek Nuclear Generating e,
(
Station, Unit 1)
April 7,1981 4h f '-
AP g.
Rg ORDER During the March 16, 1981 hearing, James Scott, Esq., Coun s,f, g\\
intervenor TeiPi'rg, conflimed thiit.he planned to submit his own writ en testimony and to appear as an expert witness on Tex Pirg's behalf upon several contentions 3 (Tr. 8834 39)..The Board ruled. that, on or' before March 23,1981, Mr. Scott should file a brief stating that he does intend to submit written direct testimony as a witness and to continue to serve l
in the capacity as attorney for his client, Tex Pirg.
(Tr. 8870, 8872).
The Board also directed that in his submission Mr. Scott should address:
(a) why he should not withdraw as counsel, (b) why he should not be required by the Board to withdraw as counsel for Tex Pirg, and (c) any other matter that should be presented to the Board.
In addition, the Board directed that Mr. Scott should attach to his brief an affidavit $9 from responsible officers of the Tex Pirg state-wide organization, if y
extant, or of the local Houston, Texas chapter who should: (1) identify i
_]/ Tex Pirg Contention 12, amended Contention 21, amended Contention 31, amended Contention 36 and amended Contention 39..
8104100 M $
, themselves, (2) state how long they have been officers, (3) state that they had employed or continue to employ Mr. Scott as Tex Pirg's counsel, (4) attest that, being aware of the problem, they approve his submission of expert testimony upon Tex Pirg's behalf, (5) attest that his voluntary or involuntary withdrawal as an attorney would work a substantial hardship upon Tex Pirg because of the distinctive value of Mr. Scott as counsel for Tex Pirg in the instant case, and (6)' assert whether the membership of Tex Pirg is obliged to vote on Tex Pirg's participation in the instant proceedings, and, if so, indicate when such membership vote was taken and how many members participated in that voting.
(Tr. 8870-71, 8874-75).
Responses by the other parties were to be filed by March 30,1981 (Tr. 8872, 9076).
On March 23, 1981, Tex Pirg's affidavit was served on Applicant, and the latter forwarded the affidavit to the Staff on March 25, 1981.
On March 30 and 31,1981, respectively,the Applicant and the Staff filed their briefs.
Despite the explicit ruling of the Board, Mr. Scott failed to file a supporting brief at the time he submitted the Tex Pirg affidavit executed by Messrs. Richard Hunt and Jeff !lutton. This failure is inexcusable. At no time had Mr. Scott stated that he would be unable to file his brief by the due date and he did not timely file a motion for extension of time. A serious ethical-professional question is in l
issue,S/ but Mr. Scott did not see fit to file a brief which, among l
l
_2/ See page 3.
I e
3-
_2/ refer to page 2.
The following Disciplinary Rules of the American Bar Association's Model Code of Professional Responsibility are involved herein.
OR 5-101 provides in pertinent part:
(B) A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:
(1)
If the testimony will relate solely to an uncontested matter.
(2)
If the testimony will relate solely to a matter of formality and there is no reason to believe that substantial evidence will be offered in opposition to the testimony.
(3)
If the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or his firm to the client.
(4) As to any matter, if refusal would work a substantial hard-ship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.
DR 5-102 provides in pertinent part:
(A)
If, after undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that he or a lawyer in his firm ought to be called as a witness on behalf of his client, he shall withdraw from the conduct of the trial and his firm, if any, shall not continue representation in the trial, excspt that he may continue the representation and he or a lawyer in his firm may) testify in the circumstances enumerated in DR 5-101(B)(1 through (4).
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. other things, should have cited case law and presented legal arguments in support of his position. We do not have the benefit of his brief, and we are not disposed to perfonn Mr. Scott's homework for him. Pur-suant to 10 C.F.R. 5 2.707, we find that Mr. Scott is in default.
i l
In briefs exhaustively researching the cases upon the issue, Applicant and the Staff submit that Mr. Scott should not be pennitted to serve both as counsel and as an expert witness in these proceedings. While Applicant urges that we disqualify Mr. Scott from any further participation as an attorney, the Staff suggests that Tex Pirg should be " free to choose Mr. Scott's role as counsel or witness". We conclude that Staff's sugges-tion is well-taken and we leave this election to Tex Pirg.
Accordingly, it is this 7th day of April 1981 F
i ORDERED l
1.
That Mr. Scott shall not serve both as counsel and as an expert 1
witness for Tex Pirg in these proceedings.
l l
2.
That by no later than April 17, 1981, after conferring with his client, Mr. Scott shall advise the Board either that his client has l
determined that he shall continue as counsel or that he shall with-draw as counser but will serve as an expert witness in these proceedings.
3.
That should the determination be made that Mr. Scott withdraws as counsel, such withdrawal shall be pennanent - i.e., after withdrawing as counsel and testifying as a witness, Mr. Scott will not be pennitttd to resume his role as Tex Pirg's counsel.
. ~
Judge Cheatum and Judge Linenberger concur but were unavailable to sign the instant Order.
FOR THE ATOMIC SAFETY AND LICENSING BOARD JA1 MM Sheldon J. Wqiye, Chainnan ADMINISTRATIVE JUDGE 9
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