ML20008F767
| ML20008F767 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 05/08/1981 |
| From: | Black R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8105120004 | |
| Download: ML20008F767 (6) | |
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M/ly 'I y yggIb ;9 UllITED STATES OF Af1 ERICA ilVCLEAR REGULATORY C0!t11SS10ft-Ym u,,, &"naum m
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BEFORE THE AT0!11C SAFETY AllD LICENSING BOARD In the itatter of HOUSTON LIGliTING & POWER COMPAllY
)
Docket No. 50- 66
)
(Ailens Creek Nuclear Generating
)
Station, Unit 1)
)
flRC STAFF'S RESP 0llSE Ill SUPPORT OF APPLICAllT'S 110 TION TO PRECLUDE TESTIl10ilY OF JAf1ES M. SCOTT On April 7,1981, the Licensing Board issued an Order which ruled that in accordance with the American Bar Association's flodel Code of Professional Responsibility (Code),M
- r. Scott shall not serve as M
counsel and as an expert witness for TEXPIRG in these proceedings. The Board further ordered that 11r. Scott should " advise the Board either that his client has determined that he snall continue as counsel 02 that he shall withdraw as counsel but will serve as an expert witness in these proceedings." Order, p. 4.
On April 16, 1981, Attorney Scott sent a letter to the Board and parties expressing his disagreement with the Board's Order but, more i
j specifically, asserting his opinion that the Order did not preclude him from filing testinony and becoming an expert witness for Intervenor y
Disciplinary Rules (DR) 5-101 and 5-102.
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- 810512000Y 6
-2 6
Doherty while continuing as counsel for TEXPIRG. Consequently, on April 20, 1981, Mr. Scott filed direct testimony on Doherty Contentior. 3.
On April 22, 1981, Applicant filed a " Motion to Preclude Testimony of Jares M. Scott." The NRC Staff supports Applicant's motion for the re; sons set forth below.
~
As indicated in the Board's Order (p. 2), a " serious ethical-professional question is in issue" with respect to this attorney-witness dual role. Both Applicant and Staff submitted extensive briefs in support of their position that Mr. Scott should not be permitted to serve both as counsel and as an expert witness in these proceedings in light of the applicable canons of professional responsibility and case law. See "Applicar.t's Brief Addressing the Need to Disqualify TEXPIRG's Counsel Pursuant to Disciplinary Rules 5-101 and 5-102." dated March 30, 1981; "NRC Staff's Brief Regarding Propriety of TEXPIRG Counse' Becoming Expert Witness," dated March 31, 1981. Mr. Scott filed no brief in support of his position.
Without reiterating the contents and argunents set forth in 4
the Staff's brief on this issue, it is clear that one of the rationale underlying the Code's canons of ethics and disciplinary rules at issue here is to protect the integrity of the legal profession. Thus, the Staff argued that to avoid the appearance of impropriety, an attorney should not testify as to material, contested facts in a proceeding where he is serving as advocate. See Staff's Brief at p. 5, 6 citing United States v.
Treadway, 445 F.Supp. 959 at 960 (N.D. Tex. 1978):
The ethical discipline of the American laywer, simply put, has concluded that an attorney who testifies to material, contested facts ought not act as an advocate in that sane matter.
(footnote omitted)
It is also clear that the Code emphasizes that the " roles of an advocate and of a witness are inconsistent" and should be avoided.
Code EC 5-9.
See Staff's Brief, p. 4.
While'it is true that in most iristances the dual role conflict appears in situations where an attorney ought to testify on behalf of his client, we believe that the rationale underlying the applicable canons and disciplinary rules in the Code applies in situations where an advocate has to or seeks to testify on behalf of a third party.
In these situations, the Code's suggestion that the dual role is inconsistent and should be avoided to protect the integrity of the legal profession has equal applicability.
2 Both Mr. Scott and Mr. Doherty / argue, in effect, that the Board and the parties should not concern themselves with whether Mr. Scott's dual role will diminish his effectiveness as co'unsel to-TEXPIRG or as an expert witness. They contend that such ineffectiveness is the I
intervenors' concern--not the Board's, the Staff's or the Applicant's.
However, this argument completely ignores the appearance of impropriety that such a dual role manifests in this legal proceeding.
The integrity of the legal profession cannot be waived by the consent of a client or an interested third party. That is, the public should 2/
See Intervenor Doherty's Motion in Reply to Applicant's " Motion to Preclude Testimony of James M. Scott," dated April 22, 1981.
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4 expect that an attorney appearing on behalf of his client in these proceedings will represent that client through independent, objective, and rational argument. The impairment of the effectiveness of counsel will jeorsedire the integrity of these proceedings and the integrity of the h2al profession in the eyes of the public.
We submit that the above considerations were properly reflected in~
the Board's Order. Although the Board indicated that Mr. Scott could not serve a dual role with respect to TEXPIRG, its decision was based on the briefs submitted by Applicant and Staff which argued that "Mr. Scott should not be permitted to serve both as counsel and as an expert witness in these proceedings." Order, p. 4.
Accordingly, we submit that the Board's Order bars Mr. Scott from filing testimony on behalf of Mr. Doherty and, consequently, we support the Applicant's motion to preclude this testinony.
Res ctfully submitted, Richard L. Black Counsel for NRC Staff l
Dated at Bethesda,11aryland, this 8th day of May,1981.
l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSI0li BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of HOUSTON LIGHTING AND POWER C0:!PANY )
Docket No. 50-466 (Allens Creek Nuclear Generating Station, Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "HRC STAFF'S RESPONSE IN SUPPORT OF APPLICANT'S MOTION TO PRECLUDE TESTIMONY OF JAMES M. SCOTT" in the above-captione<i proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 8th day of May,1981:
Sheldon J. Wolfe, Esq., Chairman
- Susan Plettnan, Esq.
Atomic Safety and Licensing David Preister, Esq.
Board Panel Texas Attorney General's Office U.S. Nuclear Regulatory Commission P.O. Box 12548, Capitol Station Washington, DC 20555 Austin, TX 78711 Dr. E. Leonard Cheatum Hon. Jerry Sliva, Mayor Route 3, Box 350A City of Wallis, TX 77485 Watkinsville, Georgia 30677 Hon. John R. Mikeska Mr. Gustave A. Linenberger*
Austin County Judge Atomic Safety and Licensing P.O. Box 310 Board Panel Bellville, TX 77418 U.S. Nuclear Regulatory Comission Washington, DC 20555 Mr. John F. Doherty 4327 Alconbury Street The Honorable Ron Waters Houston, TX 77021 State Rapresentative, District 79 3620 Washington Avenue, No. 362 Mr. William J. Schuessler Houston, TX 77007 5810 Darrell Houston, TX 77074 J. Gregory Copeland, Esq.
Baker & Botts One Shell Plaza Houston, TX 77002
t o Jack Newman, Esq.
D. Marrack Lowenstein, Reis, Newman &
420 Mulberry Lane Axelrad Bellaire, TX 77401 1025 Connecticut Avenue, N.W.
Washington, DC 20037 Texas Public Irterest Research Groupt Inc.
Brenda A. McCorkle c/o James Scott, Jr., Esq.
6140 Darnell 13935 Ivymount Houston, TX 77074 Sugarland, TX 77478 Mr. Wayne Rentfro Rosemary N. Lemmer P.O. Box 1335 11423 Dak Spring Rosenberg, TX 77471 Houston, TX 77043 Carro Hinderstein Leotis Johnston 8739 Link Terrace 1407 Scenic Ridge Houston, TX 77025 Houston, TX 77043 tiargaret Bishop U.S. Nuclear Regulatory Cormiission J. Morgan Bishop Region IV, I&E 11418 Oak Spring 611 Ryan Plaza Drive, Suite 1000 Houston, TX 77043 Arlington, TX 76011 Stephen A. Doggett, Esq.
Bryan L. Baker Pollan, Nicholson & Doggett 1923 Hawthorne P.O. Box 592 Houston, TX 77098 Rosenberg, TX 77471 Robin Griffith Carolina Conn 1034 Sally Ann 1414 Scenic Ridge Rosenberg, TX 77471 Houston, TX 77043 Mr. William Perrenod Atomic Safety and Licensing 4070 Merrick Board Panel
- Houston, TX 77025 U.S. Nuclear Regulatory Commission Washington, DC 20555 Docketing and Service Section*
Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Panel
- Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 IW
(!C RicNard L. M ack Counsel for NRC Staff'
.