ML20126H964
| ML20126H964 | |
| Person / Time | |
|---|---|
| Site: | Allens Creek File:Houston Lighting and Power Company icon.png |
| Issue date: | 04/07/1981 |
| From: | Doherty J DOHERTY, J.F. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20126H963 | List: |
| References | |
| ISSUANCES-CP, NUDOCS 8104220661 | |
| Download: ML20126H964 (7) | |
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April.7, 1981 i
UNI 22D' STAT:S OF AMERICA
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UUOLEAR REGULATORY COMMISSION
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3EFOR2 T'iS ATO'!IC SA7ITY & LIO2H3ING BOARD 4
f,.
In the Matter,of:
HCUSTOU LIGHTIN' & FC !2R CO.
Doc,iet No. 53 CF I
(Allens' Creek Huclear Generating Station, Unit 1) e i
JOE ' F. DC'IERTY'S' RZFLY TO AFFLICAST'S :iCTION '0F MARCH ?O,1981 TO DISCUALIFY TEXFIRG'S COURSEL SCOTT *, AUD STAFF'S 3RIEF IN RESPONS3 TO BOARD REQUEST (tr. 8835) '
j John F. Doherty, Intervenor 7ro s_e, in the above croceeding i
now files-the above styled-response.
As a carty who intends j
to use Tex?IRG attorney James M. Scott, this filing is in res-r ponse ' to two filings b7 Applicant and Staff with reF;Srd to Mr.' Scott's status in these proceedings.
The intent of this l
filing.is to show that where the public interest is paramount i
I follouing the succestion of either Staff or Applica.it is unwise.
This Interven sr believes his right to repl,y to a motL?n ic cloar, f
and that where the Board did not specifically limit 3riefs j
to Staff (Applicant has really not filed a "Brief") and Apoli-i cant, an'd where he intends to use Mr. Scott as an expert witness 4
for his Contention #3, the filing of a "R9 ply" is in order, (as far as to Staff's subnittal is concerned) due to this latter interest.
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.3aekrround Acolicant in its I; arch 30, 1981 filing (hereafter:
Brief-Motion) at c. 9, insinuates that tir. Scott deliberately withheld notifying it:of his plan to appear as an exoert witness l
for five TexFIRG contentions, the earliest of which will be heard l
in June.
This necessarily brings u-che history of these proceedings, f
because DR 5-102 (A) and (3) place a burden on an attorney to l
withdraw (although as shown below there are exceptions) when this l
i 7erson knows they will be a witness (the code here says nothing however
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about exoert witnesses). In April, '97?, Applicant was severely defeated by. TexFIRG-Counsel Scott on the issue of proper Federal e
'J ejhithough styled'a "Brief", this filing is in fact a Motion.
r See the enclosed Motion b7 this Intervenor with regard to this flaw.
8104220 W
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i R'egister notice in an Appeal Board decision, ( ALA3-535,
' April 4, 1979).
In May of 1979, Tex 2InG una defunded by the University of Houston.
By use of the summer school
" check-off"(32.00 from each University.of Houston student who who checked'a' box marked. Tex?IRG on their registration form,.and a fed fundraising activities) the group was able to continue its solitary payed employee until mid-1930.
I Fundraising throu6 several persons keat alive the hope of h
obtaining expert; witnesses, but with the passage of time
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it became clear no local witness were willing to testify.
Through the course of these 'roceedings, Applicant has sought p
the dicaissal of Intervenor Hinderstein, Intervenor McCorkle,
'the Board (in order-to speed up the licensing),and TexPIRG.
Movin3 to dismiss through'various avenues is a frequent Acolicant tactic.
But the history shows only a financially l
strong organisation being weakened through a lonc croceed1ng, j
As late as January 1931, this Intervenor attemoted to find an exoert witness for some of his safety issues and Mr. Scott asked me to inquire if there tight be any for any of the I
safety issues.
Although sympath' etic, there were none in these snecialized areas.
This having failed, in this Inter-venor's case, I debated for several weeks the wisdom of using
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Mr. Scott, for my Contention #3, and reached the decision to go ahead on that single issue at the end of February.
The j
same is Drobably true of Tex?IRG.
Applicant's witnesses j
Michaelson, Perl and Hamilton indicated they received $100 per hour for their services.
TexFIRG had hoped to provide some money for witnesses, but as their financial situation grew worse, only-then could it have been possible for Mr.
Scott to have learned or for it to become " obvious"(DR 5-102 (A) that he might become an ex7ert witness.
-Annlicability of civil and criminni canes to administrative hearings.
In support of their notions as stated in Anulicant's Brief-Motion and Steff's Brief of March 30, 1?81 (Hereafter: Staff's Brief) i l
both have used cases drawn exclucively from civil and criminal litigation.
The Atomic Safety and Licensing Board is not a court, but a hearing 30ard.
ASministrative law has consi'.erable
' variance from judge and judge and jury activities.
One illus-i 1
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i tration of'this was'in.these hearings, where the Board told' Anolicant its case wasl weak with.recard to the Barge 31in and-toldiit to suhply two a'dditional? witnesses.
On ernlaining
, why'the Board could not uphold an objection to this oractice, i
Jul;et ?lolfe stated (Tr. 9295) that "... [t,] he public ' interest
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is parsmount7 If this be so, these heari a s differ from the-l lititat, ion involving attorneys as witnesses (but not expert witnesses) cited by both Staff and Applicant in the subject f
~~filingc.
In fact the total failure of Staff and Apolicant to tre-sent any adminisrative law.on thisLtopic indicates there is none.. It is therefore doubtful that any attorney has'ever been prevented from testifyin6 as an expert ~ witness in an administrative hearing or licensing hearing held in the l
public interest.- The same goes for restraining an exoert 1
witness from resuming his role as counsel to a party who is
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litigating in the nublic interest.
But, the disqualification of an attorney because he I
seeks to be a witness is not an ironclad requirement. In l
Greenbaum Mountain Mortrare Co. v Fioneer National Title In-l surance Co., 421 F. Supp 1348 (D. Colo. 1976, a non-administra-l tive 7roceedinr;, 3xception to DR 5-102 (A) was allowed. In the t
cases cited by Applicant.or Staff below, counsel were not allowed to testify because the7, or their firms had access to infor-i i
mation or personal knowledge about the dispute. Hull v. Cellanese l
Corn., 513 F.2d 568 (2nd Cir. 1975), a sex discrimination case, j
Drarenescu v First Uational Bank of Hollywood (Fla.) 502 F. 2d 550
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(5th Cir.1974), a negligence suit, Connel v Clairol Inc. 440 F. Suop 17 l
UD Ge. -1977), a catent infrin7 ment case, U. S. ex rel Sheldon I
Electric v 31ackhawk Heatinse & Plumbing, 423 F. Supp, a86 ( 3. D.
j
.(FL.1976) dispute between contractor and subcontractor, Philli,s
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- v. Mtrick 553 F.2d 489 (Sth Cir. 1977) a criminal proceeding, and International 21ectronics Corn. v Flancer,527 F.2d 1288
)
(2nd Cir. 1975) a suit on stockholder aisrepresentation.
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In addition, both Greenhaum H untain Mort m -a (sunra.) and U. S.
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v Sorin 7er 463 F.2d 1344 (6th Cir. '972) were non-administrative
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matters.
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_4-However, Applicant'has supelied one case, Universal' Athletic Sales Co. ' v American IP"i Recreational-i Athletic Ecuintment Corn.
516. F.2d 530, ( 3rd Cir. 1976) (Aonlicant's 3rief-Motion, p.8) where the Court of Anpeals.over-turned the districtccourt because it'placed controlling; weight on an attorney-electrical engineer's' l
testimony when the: evidence required a mechanical engineer's en -
l Loertise in. determining patent rights.
This is Apolicant's only.
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case where an en,ert witness-attorney dual role was disallowed.
Rule DR 5-100(A) is' dot' immutable of internretation i
Id a concuring ooinion to.a por curiam decision, Judge Gurfein in J. P. Folev h C,. v Vanierbilts 523 F.2d 1357 i
smoke fo'r flexibility in the use of DR 5 402 (A):
l I think a. court need not treat the Canons of.Profes-sional Responsibility as it would a statute.that we have no right to amend.
le'should not. abdicate our
_ Constitutional function of rerulatiac the Bar to i
'! hen we find an area of uncertainty
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that' extent.
(however) we must use our judicial orocess to make l
our own decision in the interests of justice to all i
concerned. (at 1359,60)
Protectinr the Lecal Profession j
Both Applicant- (Brief-Motion, p. 4) and Staff (Brief, p.1a) j state the integrity of the legal profession is one of the I
goals of the orchibition against attorney's as witnesses (and f
presumably exnart witnesses). But neither of these set forth i
exactly what it is that Mr. Scott might say as an expert wit-l ness which would injure the legal profession.
In an article,
-j "The Rationale of the Rule that Forbiis a Lawyer to be Advocate and '.litness in the 3ame Case,"*977 Am. 3ar Founiation Journal t
455, Enter states-i Protection of the orofession's innre assas at best a i
makeweight.
~ts force is a function of the degree to i
which the. forbidden cractice is repariel as intrinsic-l ally wrongful.
Absent an e::planation of the imorcoriet" l
of the nractice itself, the argument from profossional im-age hardiv seems sufficienti: potent to' explain the in-tensity with which the practice has been denounced.
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In the 3rief-Motion, p.4, Applicant states.the rule is based l
in cart on the c ncern that an attorney ma" iistort the truth l
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'for the sake of his client.
3ut, modern rules of evidence I
no lon ergrequire automatic discualification of interested i
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I witnesses. f( j2 J. 'dismore; Evidence, S 576, at 693). 37 use of cross examination ~these'tarties_may be best able to show l
the competency of the testimony they seek to keep from taking
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force in.the record which Mr. Scott would give.
i TexPIRG's counsel chould not be denied further narticiantion as'en attorne-in this oroceedin~ because he has chosen to i
annear es.a' witness.
In'its request, the Board asked to be advised so it cou'..d
"...- [dG e cide : whether or not Mr. Scott should eithdraw as counsel t
if he intends-to nroceed as an ex7ert witness on Tex 7IRG's behalf."
(Tr. 3834)
Should the Board decide "Mr. Scott shouli withdraw as counsel" (ibid.) is cuite different from moving to discualify f
as Aoplicant has done, because it usurp's the Board's attempt
'to find out what it should do (if anything) if M,r. Scott becomes
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a witness (Tr. 8870-72).
This is because it recuires the Board i
to decide -if it should disqualify Mr. Scott on Applicant's motion I
on. facts known to this time.
One would think, out of courtesy to the Board, the motion to disqualify would have waited for the Board's decision.
One notes (Ir. 8334) that Apolicant had from March 6, 1981 to March 16, 1981, to file such a motion before Judge "!olfe's request.
j Obviously a carty with an expert witness has an advantage
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because that party can place scientific research which backs its
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position far more easily into the record than it can if it must I
get it into the record through another party's witness.
Staff's j
brief urges that a high price be exacted from Tex?IRG if it suc-l ceeds in having Mr. Scott testify in its behalf.
TexPIRG's counsel is of distinctive value to it.
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To TexFIRG, Mr. Geott is of disti.ctive value as an attorne?
l because he and no one else has worked for them on this proceedin6 for the last three years.
No attorney could familiarize himself j
with the issues remaining, both environmental and health and safety, l
nor be as familiar with the record as he.
There are few attornev's
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available at nominal fees with his combinatica of scientific and lega1' education.
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Annlicant Has Other Wavs To Protect Ice Interests.
Aoo,licant lauds DR 5-102 (Motion-Brief, p.4) without noti-cing the crimary puroose of the hearin?s is the oublic interest.
Mr. 3cott reoresents one of several Public Interest Research Groups.
It is worth notin.7 that in International Electronics Carn v Flanzer (suora) cited orominently by A,olicant (Motion-3rief, p.4-5) there were very few cersons who knew the facts with regard to the charge of corocrate misrenresentation central to that case.
Here we will be dealing with _ facts treated-by many ou511c documents and renorts.
Applicant makas no montion l
of any one thiny Mr. 3cott could testify to that would "... @]is-tort the truth'for the sake of his client" (Motion-Brief, p.4) that A??ticant would not have access to. Applicant has re-direct rights to its witnesses and re-cross riEhts on Board.cuestions available to it.
In addition, it may obtain leave of the Board to recross witnesses for good cause.
4 To Disnualify TexPIRG's Counsel From Annearine As An Exnert i
_itness Or Annearine As Counsel 'lould Be A Hardshin to TexPIRG.
W In attacking the TexPIRG affidavit, (Motion-Brief, n.61 Apolicant has cited cases where orivate businesses were involved in civil litigation.
For such cases, if they have merit, it is fairly easy for a vouli-be plaintiff to pay an attorney on a contingency fee, and hence the casos went against su'ch attor-neys being witnesses.
Here, of course, TexEIRG as an Intervenor cannot offer even that.
To apoly these cases to a non,rofit corocration atteonting to intervene in the oublic's behalf in a nuclear oower plant licensinr is to broaden these rulings i
greatly.
Gunreme 3eef Processors, Inc. v American Consumers i
Industries, Inc.,, a41 F. Suop. 1064 (cited by Applicant in its Motion-Brief, p.6) was a case an attorney woull take on a contin-f
~ency basis, even if the client had no money.
3ince TexPIRG will get no money to nrovide an attorney's foes if it tins in this multi-issue hearing, TexFIRG is in much greater financial hard ship than any of the parties in the cases cited by Aoplicant.
Jhen closely examined, this Intervenor believes it is difficult to imagine a situation where hardship could be greater, and the i
same hardshi, voul' make unfair Staff's position that Mr. 3c:tt i
shou 11 be normitted only to be an ex, rt witness, but not allowed i
to resume as counsel on remaining issues.
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In DR. -101 and 102, A'" Witness" Is Not An Exnert Witness.
i It is interestin.:; to note that 10 CFR 2 713 (a) 7ermits f
a marty nro-se to advocate or witness without restriction.
'An attorney appearing pro se,would have the same right. Go,
- it is the fact of representing others that makes the appear-l ance'of an attorney.as a witness unethical according to j
Acplicant and Staff.
This Intervenor believes that this 3
aspect of the Disciplinary Rules conos as baggage to Commis-f
~ sion hearings, and that when the cubject DR was formulated, cases were contemplated but not administrative hearings such as these.
Nor do the Disciplinary Rules mention ex-cert witnesses as incompatible roles for attorneys.
Expert j
witnesses are more expert than witness.
Indeed, in these j
proceedings we have'had environmental witnesses, with only a casual acquaintance with the environment of the ACNGS. These appear far removed from the witnesses in the mind of the framers of the Disciolinary Rules.
Hence, in the case of TexPIRG's
-l counsel the application of the rule, where he is to be an excert witness and not a " witness" in the usual sense of the term, would be unjust.
j Conclusion h
t For the foregoing reasons, TexPIRG's counsel, James M.
i Scott, of Sugarland, Texas, should be unrestricted by the I
-Disciplinary Rules in appearing as an expert witness for
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TexPIRG contentions.
Nor should he be disqualified as urged i
by Applicant or prohibited from resuming his cosition as counsel on completing any or all testimony in behalf of j
his client or this Intervenor, as urged by-Staff.
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Respectfully,
. (1.
g.
v.
John F. Doherty, J. D.
j CERTIFICATE OF SERVICE l
i Co ies of this Recly of Anril 7, 1981 were served via First l
Class Mail this d April, 1931 from Houston, Texas on the i
narties: Gheldon J. 'dolfe, Esq., Gustave A. Linenberger, Dr.
- 2. Leonard Cheatum, Administrative Judces, ASLB; Richard Black, Esq., NRC Staff; Jack R. Newman, Esq. and J. Gregory Coneland,. Esq., Counsel for Applicant; the State of 1
Texas the Several Intervening Parties; URC Docketing & Ser-vice; ;and the Atomic Safety Licensing and Appeal Board.
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