ML20077J503
| ML20077J503 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 08/12/1983 |
| From: | Bernabei L GOVERNMENT ACCOUNTABILITY PROJECT, SINCLAIR, M.P. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20077J504 | List: |
| References | |
| ISSUANCES-OL, ISSUANCES-OM, NUDOCS 8308160464 | |
| Download: ML20077J503 (16) | |
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UNITED STATES OF AMERICA 90CKETE8 NUCLEAR REGULATORY COMMISSION USNRC BEFORE THE ATOMIC SAFETY AND LICENSING B @ di515 h9 d5 In the Matter of CFFQE C 50 329f SECPEP :-
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Docket Nos.
QM -
CONSUMERS POWER COMPANY
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50-330 OM
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50-329-OL
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(Midland Plant, Units 1 50-330-OL and 2)
MOTION TO RECONSIDER ORDER UPHOLDING ATTORNEY-CLIENT PRIVILEGE PROTECTION FOR NOVEMBER ~24, 1982 CONSUMERS-BECHTEL MEETING 1/
Intervenor Mary Sinclair, through undersigned counseI, hereby moves this Atomic Safety and Licensing Board
(" Licensing Board")
to reconsider its ruling that the substance of a meeting held between Consumers Power Company (" Cons ume rs" ) Vice-President James Cook, Gerald Charnoff, a Washington attorney with the law firm of Shaw, Pittman, and Bechtel Power Corporation ("Bechtel")
personnel is protected from disclosure under the attorney-client privilege.
I.
BACKGROUND.
On June 28, 1983, intervenor Mary Sinclair asked Mr. Cook a series of questions concerning minutes of a meeting held on November 27, 1982, a short time prior to the shutdown of safety-related construction at the Midland site.
The meeting was held between Mr. Cook and Roy Wells of Consumers and John Rutgers and Donald Miller of Bechtel, apparently to discuss the suspension of work.
See, Sinclair Exhibit 6.
At the end of the minutes, which Mr. Wells acknowledged he wrote, were three sentences which indicate public relations' concerns of Consumers.
These three sentences are:
1/
Undersioned counsel represents Mrs. Sinclair solely for the Purposes of this Motion to Reconsider.
8308160464 830812
~I 7
]h PDR ADOCK 05000329 G-PDR
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. Bechtel/ Consumers /Charnoff met Wednesday at GAP; Enlisted Nuclear Lobbyist to keep Midland separate from Zimmer; Can communicate with NRC thru MAC.
Mrs. Sinclair asked Mr. Cook to explain the first se".'.ence, specifically wl.o Mr. Charnoff was and the general nature of the discussion about GAP.
Mr. Cook stated that Mr. Charnoff was a Bechtel attorney, Tr. at 18576.
Mr. Wells stated that the purpose of the meeting held on November 24, 1982 was to discuss GAP, a group with which Consumers was not very familiar.
Tr. at 18577.
Mr. Charnoff, in his letter of July 14, 1983, forwarded to this Board by applicant's attorney, stated that at a meeting on November 24, 1982 with Mr. Cook he was told, presumably by Mr. Cook, about GAP's involvement in connection with QA-related matters at Midland.
Mr. Chernoff also stated that Mr. Cook and "some of his people", presumably other Consumers' executives or employees present at the meeting, seemed to believe he (Charnoff) was representing Consumers as well as Bechtel until he clarified the matter.
Mr. Miller misstated to this Licensing Board that he was at the meeting, that the purpose of the meeting was to discuss Mr. Charnoff's assumption of new professional duties for Consumers, and that Mr. Charnoff was serving as Consumers ' attorney.
Tr. at 18577, 18608-10.
After reviewing Mr. Charnoff's request to correct the record, Mr. Miller forwarded both his and Mr. Charnoff's letters to the Licensing Board.
See Charnoff and Miller Letters, attached and incorporated herein as Exhibits 1 and 2.
In his letter of July 25, 1983, a full month after Mr. Cook's testimony and Mr. Miller's statements to. this Licensing Board, Mr.
Miller asserted _once again the attorney-client privilege, this time on the ground that Mr. Cook believed Mr. Charnoff was serving 'as his
~
attorney even though that was not in fact truo on November 24, 1982.
' II.
CONSUMERS WAIVED THE PRIVILEGE BY DISCLOSING ANY ALLEGEDLY CONFIDENTIAL INFORMATION TO THIRD PARTIES, THE BECHTEL PERSONNEL PRESENT AT THE MEETING.
To claim the attorney-client privilege, a person must establish the following:
(1)
The asserted holder of the privilege is or sought to become a client; (2) the person to whom a communica-tion was made (a) is a member of the bar of a court, or his subordinate and (b) in connection with the communica-tion is acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) by his client (b) without the presence of strangers (c) for the purpose of securing either (i) an opinion of law or (ii) legal services of (iii) legal assistance in some legal proceeding, and not (d) for the purpose of committing a crime or tort, and (4) the privilege has been (a) claimed and (b) not waived by the client.
United States v. United Shoe Mach. Corp., 89 F.
Supp. 357, 358 (D. Mass 1950); VIII Wigmore, Evidence 2292 (McNaughton rev. ed.
1961).
The attorney-client privilege exists to protect confidential communications, to assure the client that any statements he makes in seeking legal advice will be maintained as confidential, and effectively "to protect the attorney-client relationship."
United States v. American Telephone & Telegraph Co., 642 F.2d 1285, 1299 (D. C. Cir. 1980).
Therefore, since any disclosure by the client or holder of the privilege is inconsistent with the confi-dential relationship, it waives the privilege.
Ibid. ; Advisory Committee's Note, Rule 5-11, Proposed Rules of Evidence, 46 F.R.D.
161, 280-81 (1969).
Voluntary disclosure to a third person of any portion of a confidential communication will serve to wavie the privilege as to the entire subject matter of the communication.
In re Sealed Case, 676 F.2d 793, 818 (D.C. Cir. 1982).
Since information protected by a privilege would be otherwise discoverable and the
. privilege limits parties' and courts' access to evidence, privileges must be construed as narrowly as is consistent with their purpose.
In re Horowitz, 4 82 F. 2d 72, 81 (2d Cir.), cert.
denied, 414 U.S. 867 (1973); In re Grand Jury Subpoena, 81 F.R.D.
691, 693 (S.D.N.Y. 1979); Teachers' Insurance and Annuity Ass'oc.
of America v. Shamrock Broadcasting Co.,
521 F.Supp. 638, 640-41 (S.D.N. Y. 1981).
There fore, a client must not only ensure that communications with his attorneys are confidential when made, but in addition, he must take affirmative action to preserve the communi-cations' confidentiality.
In In re Horowitz, supra, 482 F.2d at 182, the court ruled the client waived his privilege by submitting to his accountant records which included privileged matter and not setting out any rules the accountant needed to follow in re-viewing or using these legal materials.
In United States v.
Kelsey-Hayes Wheel Co.,15 F.R.D.
461, 465 (E.D. Mich. 1954), the court held certain documents not privileged in that they were " indiscriminately mingled with other routine documents of the corporation and that no special effort to preserve them in segregated files with special protections was made."
See also, United States v. Jones, 696 F.2d 1069 (4 th Cir. 1982), in which the court found attorney's tax opinions not privileged in that they were never intended to be confidential.
A proponent of the privilege must demonstrate not only that an attorney-client relationship existed but that the "particular communications at issue" are privileged and the privilege was not waived as to those particular communications, the court concluded.
Id. at 1072.
. It is obvious that the presence of Bechtel personnel at the meeting between Mr. Charnoff and Mr. Cook waives whatever privilege attached to the communications between them, unless Consumers can demonstrate Consumers and Bechtel were expressly planning a joint defense at that meeting and all communications involved confidential, non-public matters.
The lawyer-client privilege is recognized for joint conferences between two or more clients and their attorneys when communications are made by the client to his attorney or an attorney representing another client in a matter of common interest.
2 J. Weinstein, Evidence 1 50 3 (b) [b6], at 503-59 (1977).
Such communications are privileged only if they are confidential and designed to further a joint or common defense.
Magnaleasing, Inc. v. Staten Island Mall, 76 F.R.D.
559, 564 (S.D.N.Y.
1977); Abraham Construction Corp. v.
Armco Steel Corp., 559 F.2d 250, 253 (5th Cir. 1977); Hunydee v.
United States, 355 F.2d 183, 185 (9th Cir. 1965); Matter of Grand Jury Subpoena Duces Tecum Dated Nov. 16, 1974, 406 F.Supp. 381, 389,.391 ( S. D. N. Y. 1975); Smith v. Emery, 211 Minn. 547, 2 N.W.
413,.417 (1942).
Although many cor.rts have recognized the existence of a joint defense exception te the waiver doctrine, few have upheld it on s
tho' facts of the case before them.
In Magnaleasing, Inc. v.
Staten Island Mall, supra, 75 F.R.D.
at 564, the court ordered disclosure of a settlement agreement because it involved not matters of a joint defense but simply the transfer of assets between the defendants.
f
. In In the Matter of Grand Jury Subpoena, aupra, 406 F.Supp. at 392-93, the court upheld the joint defense privilege with respect to a number of meetings but found the privilege waived with regard to one meeting when the purpose for the presence of a stranger to the attorney-client relationship was not adequately explained.
This cast " doubt upon the claim that the interview was conducted under circumstances of measured and guarded confidentiality."
Ibid.
See also, United States v. Car.ie llo_, 536 F.Supp. 698, 702 (D. N. J.
1982) in which the court found no evidence that defendant wanted his communications to be confidential or to be part of a joint strategy; Government of the Virgin Islands v. Joseph, 685 F.2d 857, 862..(3d Cir. 1982) (no attorney-client relationship existed capable of extension to convers.ation between defendant and co-defendant's attorney); United States v. Me.tvin, 650 F.2d 641, 646 (5th Cir. 1981)
(no privilege when confidential informant attended meeting of other defendanto and the counsel and defendants should have known that informant not part of joint defense and with his presence they 2/
could not reasonably expect privacy.)~
Consumers has made absolutely no showing that Consumers and Bechtel were engaged in a joint defense at this meeting.
Since Bechtel is not a party to these licensing hearings it cannot be Sj2 See Sneider v. Kimberly-Clark Corp., 91 F.R.D.
1, 8 (S.D.N.Y.
1980), in which the court found that in order for the attorney-client privilege to prevail in the presence of outsiders one must demonstrate "an identical legal interest with regard to the subject-matter of communications between an attorney and a client....";
and Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp, 1146, 1172 (D. S. C. 1975).
Clearly consumers and Bechtel do not have identical legal interests in these licensing hearings.
Mr. Cook himself testified to that fact in stating that there would be liability issues to be resolved between the two corporations at the end of the Midland project.
. said that it is in any sense a co-party with consumers with respect to these proceedings.
Moreover, the particular communi-cations which Consumers seeks to shield, whether they be from Mr. Charnoff to Mr. cook or from Mr. Cook to Mr. Charnoff, have not been shown to be confidential.
In fact every indication on the record is that the communications are information ddrived from the public record and history of the Zimmer and Midland proceedings.
Clearly documents or communications relaying information derived from third persons, strangers to the attorney-client relationship, are not privileged.
Fisher v. United States, 425 U.S.
391, 403 (1976); United States v.
Itall, 346 F.2d 875, 882 (2d Cir.),
cert. denied, 382 U.S.
910 (1965); United States v. Aronof f, 466 F.Supp. 855, 859-60 (S. D. N. Y.
1979).
The re fore, Consumers has waived whatever privilege attached to Mr. Cook's communications with Mr. Charnoff by permitting Bechtel personnel to be present during the conversations.
Fu r the r, Consumers has not demonstrated in the record before this Board the " joint defense" exception to the waiver.
III.
CONSUMERS IIAS WAIVED ANY PRIVILEGE REGARDING TIIE SUBJECT MATTER OF T!!E NOVEMBER 24, 1982 MEETING TIIROUGli DISCLOSURE OF MEETING MINUTES, TESTIMONY OF MR. WELLS AND MR..CilARNOFF'.S LBTTER.
A party waives the protection of the attorney-client privilege if he or she discloses any part of the subject matter of the confi-dential communications.
In re Sealed Case, supra, 676 F.2d at 818; United States v. American Telephdne & Telegraph Co., supra, 642 F.2d i
at 1299; Smith v. Alyeska Pipelide Service Co., 538 F.Supp. 977, 979 (D. Del. 1982).
L i
- In this_ case, applicant has described the substance of the November 24, 1982 meeting in three ways and so waived the privilege regarding the subject matter of the entire meeting:
(1)
Disclosure of minutes of the November 27, 1982 meeting which describe the time, participants and general subject matter of the November 24, 1982 meeting; (2)
Mr. Wells' testimony that the purpose of the meeting was to educate Consumers on GAP since the utility was unfamiliar with the organization; and (3)
Mr. Charnof f's statement in his letter that he was informed, presumably at the November 24, 19 82 mee ting, about " GAP's involve-ment in connection with QA related matters at Midland."
See Exhibit 1.
Consumers, the re fore, has waived, by stating a sufficiently detailed description of the nature and substance of the meeting, any privilege as to that meeting.
See Smith v. Alyeska Pipeline Service.Co., supra, 583 F.Supp. at 982 (court ordered production of all documents relating to Alyeska's infringement of a patent when plaintiff had already voluntarily produced his counsel's opinion letter concerning infringement of the patent);
Hercules, Inc. v.
Exxon Corp., 434 F.Supp. 136, 156 (D. Del. 1977); International Business Machinds, Inc. v.
Sperry Rand Corp., 44 F.R.D.
10, 16 (D.
Del. 1968); In Re Penn Central Commercial Paper Litigation, 61 F. R.D.
l 453, 464 (S.D.N. Y.
1973); Handguards, Inc. v. Johnson & Johnson, 413 F.Supp. 926, 929 (N.D. Cal. 1976).
..s e
. Moreove r, as argued above, it appears from Mr. Wells' testimony and Mr. Charnoff's letter that the communications them-selves are not confidential and do not endanger the confidential communications of Consumers as a client.
Certainly any briefing on GAP's involvement at Midland would be composed largely or entirely of information obtained from public sources -- the news media, documents filed with the Nuclear Regulatory Commission, or GAP itself.
If Mr. Charnoff were informing Consumers about GAP, as Mr.
Wells and Mr. Miller suggested, then Mr. Charnoff would have obtained his information about the organization from the same sources.
Consumers has not made an adequate showing that the communica-tions between Consumers and Mr. Charnoff were confidelttial.
Therefore, applicant has not carried its burden of establishing the factual basis for its assertion of the privilege, including that the communications contain a client's confidential statements and that the privilege has not been waived.
Federal Trade Commission v.
TRW, Inc., 628 F.2d 207 (D. C. Cir. 1980); Weil v.. Inves tment/
Indicators, Research and Management, Inc., 647 F.2d 18 (5dn Cir.
1981); United States v.
Bump, 60 5 F. 2d 54 8 (10 th Cir. 1979).
IV.
CON SUMERS ' DESCRIPTION OF THE SUBJECT MATTER OF THE MEETING DEMONSTRATES THAT MR. CHARNOFF WAS NOT CON-SULTED FOR HIS LEGAL' AINICF.
Only when an attorney is acting in the professional capacity of giving legal advice or providing legal services are communications between himself and his client privileged.
Diversified Industries, Inc. v. Me redith, 5 72 F. 2d 59 6,.612 (8da Cir. 1977); American l
Cyanamid Co. v.. Hercules Powder Co., 211 F.Supp. 85 (D. Del. 1962).
l l
. Communications to and from an attorney which are predominantly the giving of business or technical advice are not privileged.
ZenitN Radio Corp. v. Radio Corp. of America, 121 F. Supp. 792 (D.
Del. 1954); In re Natta, 264 F.
Supp. 734 (D. Del. 1967), aff'd, 388 F.2d 215 (3d Cir. 1968).
When an ultimate decision requires the exercise of business judgment and nonlegal considerations are reviewed to obtain legal advice, the business reasons for or against a certain course of action are not privileged.
SCM Corp. v. Xerox Corp.,, 70 F.R.D.
50 517 (D. Conn. 1976); Burr Marine Products Co.,
Inc. v. Borg-Warner Corp., 84 F.R.D.
631, 634-35 (D. Pa. 1979).
See also, Eglin Fede' ral Credit Union v.
Cantor, Fitzgerald Securities Corp., 91 F.R.D.
- 414, 420 (D. Ga. 1981).
In this case, a briefing of either Mr. Charnoff or Mr. Cook on GAP does not indicate that Mr. Charnoff's legal advice was sought.
Mr. Charnoff appeared to be advising Consumers at the November 24, 1982 meeting about political, business, or perhaps public relations '
strategies to be used vis-a-vis GAP.
Clearly this type of advice 3
is not providing legal services. /
3/
On November 24, 1982, GAP was representing a number of nuclear workers from Midland who had come forward with allegations of safety problems.
Consumers at this time had decided not to pursue subpoenas against GAP staff members even though the Licensing Board had issued subpoenacs during the' Summer, 1982.
Moreover, GAP had -not yet entered a notice of appearance on behalf of intervenor Barbara Stamiris.-
GAP did represent the Miami Valley Power Project ("MVPP"), an intervenor in the licensing proceedings for the Zimmer nuclear plant in Cincinnati,' Ohio.
The Commission on November 12,:1982, had suspended all safety-related construction at Zimmer, largely due to a petition and ' evidence submitted by GAP on behalf of MVPP.
By November 24, 1982, the managing utility, the Cincinnati Gas &
l Electric Company, had proposed that' Bechtel,. Mr. Charnof f's client, should become manager of the remaining construction at Zimmer.
Moreover, CG&E had proposed that Bechtel be the independent third
(
p to conduct a management audit at Zimmer.
The Commission -
ggtrote3continuedonpage11) l
- There fore, Consumers has not made the necessary showing to assert the privilege that the communications between Mr. Cook and Mr. Charnoff involved the solicitation or giving of legal advice.
V.
CONCLU S ION.
For the f oregoing reasons, intervenor Mary Sinclair requests this Board to reconsider and reverse its ruling that testimony on the November 24, 1982 Consumers-Bechtel meeting is protected by the attorney-client privilege.
Respectfully submitted, A0 W
L?h "BERNABEI At ey for Intervenor Mary Sinclair GO MENT ACCOUNTABILITY PROJECT Institute for Policy Studies 1901 Que Street, N.W.
Washington, D.C.
20009 DATED: August 12, 1983 (202) 234-9382 3/ continued decided that Bechtel could serve either as the manager of con-struction or as the third-party reviewer but not as both.
Mr. Charnoff would be well-aware of GAP activities at Zimmer since he and his firm represented Kaiser Engineering, Inc., the constructor of the Zimmer plant.
l 1
i In any event, GAP's participation in the Zimmer project was well documented publicly in legal pleadings submitted to the Conadssion and in numerous newspaper articles on the troubled project.
i Neither Mr. Charnoff nor Mr. Cook could be expected to have any confidential information concerning GAP.
EXHIB1T 1 fi SHAw, PITTMAN, PoTTs & TROWBRIDGE m..S..
WOO M 57ACET. N. W.
WASMSNGTON. O. C. 20036 m co..
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July 14, 1983 4
Michael E. Miller, Esq.
Isham, Lincoln & Beale Three First National Plaza Sist Floor Chicago, Illinois 60602 t
l
Dear Mike:
Thank you for calling my attention to the portions of the Midland l
transcript relating to my meeting with Jim Cook on Wednesday, November 24, 1982.
I have also reviewed Sinclair Exhibit No. 6, which apparently is the notes of meeting held on November 27, 1982.
Those notes contain a cryptic report that I had met with CPco on "Wed at GAP".
None of the other items in those notes have any apparent reference to me.
My recollection of the November 24, 1982 meeting is at variance with the transcript discussion.
As a result I should appreciate it if you would call this matter to the attention of the Midland Licensing Board.
l As you know, my law firm has provided legal advice to Bechtel and its personnel in a number of NRC 14. censing proceedings.
In that context, shortly before the Novembtr 24, 1982 meeting, Bechtel officials invited me to Ann Arbor on the morning of November 24, 1982 to brief me on the licensing status of the i
Midland project.
Later we drove to Jackson to have an intro-i ductory meeting with Jim Cook.
At either or both of those meetings I was told of GAP's involvement in connection with QA related matters at Midland.
Because it was the eve of Thanks-giving, the meetings were not extended.
The meeting with Jim Cook was brief, and primarily introductory.
I recall noting that you were not present and telling Jim that I would call you to' discuss the case with you and how we could be of assistance in connection with the proceedings before the Licensing Board.
You may recall that on the Monday after Thanksgiving, I did telephone you to tell you of my brief meeting with Jim and to discuss the status of the Midland proceedings in sorae detail with you.
Y
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1 Michael E. Miller, Esq.
i July 14, 1983 Page Two The transcript accurately reflects the confusion in Jim's mind which continued for several weeks on the matter of whether I would be retained by Consumers or Bechtel or both.
Jim's confusion, I believe, had its origin in some earlier legal work I had performed for Consumers.
This confusion was not resolved to Jim's satisfaction, I recall, until sometime early in 1983.
While I was, and have always been, retained by Bechtel in connection with the Midland projcct, Jim Cook and some of his people were conducting themselves as if I were representing consumers until the matter was explicitly clarified to the contrary.
While there was little substance to the November 24, 1982 meeting, I believe record accuracy requires me to have the matter corrected before the Licensing Board.
I should appreciate it if you would take care of this for me.
S
- erely, c
erald Charn ff 5
-- ~.
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- EXHIBIT 2
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k ISHAM, LINCOL'N & BEALE J
cous srumsme Dattt FWtSTIeA110NAL PLAZA CseCAGO ILissonSegent M
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WASMosGTOss OFFICE SDwhAD $ IBMAW. tert tene TE M 3tas y gggg,,
5 0171 840
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wi G st.A tens July 25, 1983 In the Matter of
)
)
Docket Nos. 50-329-OM CONSUMERS POWER COMPANY
)
50-330-OM
)
50-329-OL (Midland Plant, Units 1
)
50-330-OL and 2)
)
Charles Bechhoefer, Esq.
Dr. Jerry Harbour Atomic Safety & Licensing Atomic Safety & Licensing Board Panel Board Panel U.S. Nuclear Regulatory Com-U.S. Nuclear Regulatory Com-mission mission Washington, D. C.
20555 Washington, D. C.
20555 Dr. Frederick P. Cowan 6152 N. Verde Trail Apt. B-125 Boca Raton, Florida 33433
Dear Administrative Judges:
Following the close of the evidentiary hearings in the above captioned case at the end of July, I reviewed with Gerald Charnoff, Esq. those portions of the transcript which discussed a meeting at which Mr. Charnoff and Mr. Cook were present on November 24, 1982. (Tr. pp. 18564-18586; 18608-18616)
I was On July 14 Mr. Charnoff sent me the enclosed letter.
gone from my office the entire week of July 18 and was there-fore unable to write the Board prior to today.
In reviewing Mr. Charnoff's letter I find that I inadvertently mischaracterized l
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Administrative Judges g
July 25, 1983 Page 2
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the relationship between Consumers Power Company and Mr.
Charnoff.
As Mr. Charnoff's letter makes clear, as of the date of the November 24 meeting he understood that he was retained only by Bechtel and not by Consumers Power Company as I represented. 'However, the key fact which remains unchanged from the transcript discussion is that Mr. Cook, the only Consumers Power Company employee present at the November 24 meeting, believed that Mr. Charnoff was serving as his attorney.
It is clear that such a good faith belief causes the attorney / client privilege to be applicable to any conversations held during the course of that meeting.
The privilege applies "[w]here legal advice of any kind is sought from a professional legal adviser in his capacity-as such...."
8 Wigmore; Evidence, Sec. 2292 (McNaughton Rev. 1961).
Consumers Power, through Mr. Cook, was clearly seeking such advice from such a person.
Where legal advice s
from a lawyer is sought in good faith, the fact that the lawyer is not subsequently retained or is paid no-fee in no way affects the privileged nature of the communication.
Robinson v. United States, 144 F.2d 392 (6th Cir. 1944) affirmed, 324 U.S. 282 (1945); United States v. Costanzo, 625 F.2d '465 (3d Cir. 1980);
United States v. Ostrer, 422 F.Supp. 93 (S.D.N.Y. 1976); 8
)
h i-i
a Administrative Judges July 25, 1983 Page 3 Wigmore, Evidence, Sec. 2303 (McNaughton Rev. 1961).
Since Mr. Charnoff's legal advice was sought in good faith by a i
recent client with a view to possible continued representation, the privileged nature of the communications made at the November 24 meeting was not destroyed by Consumers' subsequent decision not to retain him.
I also find that I was in error when I stated that I was present at the November 24 meeting (Tr. 18577).
I reviewed my desk calendar for that day and find no record of being in Jackson.
I apologize to the Board and the parties for inadvertently misrepresenting these facts.
Should you desire any further in-formation regarding this matter, I will be pleased to provide it.
Sincerely, l1l
/
,s s
MIM:es Michael I. Miller Enc.
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