ML20155F653
| ML20155F653 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 04/17/1986 |
| From: | Aamodt M, Aamodt N AAMODTS |
| To: | Bright G, Kelley J, Kline J Atomic Safety and Licensing Board Panel |
| References | |
| CON-#286-862 86-519-02-SP, 86-519-2-SP, LRP, NUDOCS 8604220293 | |
| Download: ML20155F653 (14) | |
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D hEO UNITED STATES OF AMERICA
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- gy Before the Presiding Board:
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James L.
Kelley, Chairman
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l Glenn O.
Bright Jerry R. Kline
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In the Matter of
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Docket No. LRP INQUIRY INTO
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ASLDP No. 86-519-02 SP THREE MILE ISLAND UNIT 2 3
LEAK RATE DATA FALSIFICATION
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April 17, 1986
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SUPPLEMENT TO AAMODT MOTION FOR DISMISSAL OF ATTORNEYS Providing Judiciary Law 1.
Introduction.
On March 14, 1986,' the Aamodts filed a " Motion for Dismissal of Employees' Attorneys".
The Board responded on March 27, 1986 that if the Aamodts' "wish to press this motion, they are to supplement it with an explanation of how, in their view, the present arrangements for counsel conflict with the Rules of Professional Conduct... (or other principles generally accepted by the courts),
including specific reference to particulars of those db arrangements."
The Board also requested "a copy of j
the relevant portion of the record" of the cheating hearing to 8604220293 e60417 PDR ADOCK 05000320 SD}St O
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! l a matte'r of improper attorney co'nduct provided in an affidavit of Mrs. Aamodt.
The Board expressed its interest, l-l in any judicial opinion or an opinion of counsel experienced f
in questions of this nature.
Bd. Order, March 26, 1986, pp.14-18.
2.
Bases in Code of Professional Conduct of Lawyers Which Support Aamodt Motion.
i The following rules and judicial decision are taken from McKinney's Consolidated Laws of New York as promulgated by the American Bar Association.
The general rule concerning attorneys representation of multiple clients supports the Aamodts' motion (p.2, para.2).
McKinney's, Section, Interest of Multiple Clients, EC 5-15, states:
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A lawyer should never represent in litigation multiple clients with differing interests; and there are few situations in which he would be justified in repre-senting in litigation multiple clients with poten-tially differing interests.
If a lawyer accepted such employment and the interest did become actually dif-fering, he would have to withdraw from employment with likelihood of resulting hardship on the clients; and for this reason it is preferable that he refuse the employment initially.
McKinney's provides the following notes of judicial decisions which follow the the above code:
A lawyer should never represent in litigation multiple clients with differing interests.
N.Y. State 205(1971).
Dual representation is very difficult to justify except in unusual and very limited circumstances, and only af ter complete disclosure and consent, with a clear understanding by both parties of its possible 'effect on their respective interests.
N.Y. State 38(1966).
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McKinney's clarifies (EC 5-18) the standard for the r
j lawyer's judgment in considering whether to accept potentially l
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...the lawyer may serve the individual only if the i
lawyer is convinced that differing interests are not present.
l In the instant case, as stated in the Aamodt motion, j
the interests of 26 employees represented by two firms, (1) are potentially different.
The attorneys so admitted l
l In responding to the Board.
(2)
In fact, as alleged in the Aamodt motion, the interests of the 26 employees may already have been established as differing.
Since the attorneys have represented the 26 employees since,~1980, the attorneys admission that the employees' interests are potentially different is tantamount to an admission that the attorneys are aware that conflicts have alread) been identified.
(3) The attorneys' unbroken j
representati in of the 26 employees over the past six years cannot, thercfore, be construed as implying that the attorneys l
are not aware of conflicts.
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l (1)
LeBeouf, Lamb, Leiby & MacRae' of 1333 New llampshire
- Avenue, N.W., Suite 1100, Washington, D.C.,
20036 and Killian & Gephart, 216-218 Pine Street, Box 816, Harrisburg, PA 17108.
(2)
Response of Employees, March 3, 1986, p.12.
t (3) We know, off-hand, of where the testimony of one of the 26 employees inculpates another.
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. The rules of the code of pr'ofessional conduct and the judicial opinions noted (p.2 supra.) clearly call for this Board's i.mmediate dismissal.of the firms representing conflicting interests.
These firms are not convinced that no conflicts exist.
in fact, they know that conflicts do exist.
The instant litigation does not fit the circumstances where potentially conflicting representation was upheld, i.e.,
unusual and very limiting.
See p.2 supra. (Note of decision, N.Y. State 38(1966).
The determination of the culpability of 26 persons, with potential and identified conflicts of interest, with implications for public health and safety, the_ circumstances of the instant proceeding, do not fit the circ'umstances shere multiple representation was permitted. Id.
r-The rules concerning the participation of the attorneys of the employees (4), who are being paid by GPU and its subsidiaries and who represent the companies on other matters, support the Aamodt motion (p.2, para.2; p.3-8).
McKinney's states:
A person or organization that pays or furnishes lawyers to represent others possesses a potential' l
power to exert strong pressures against the in-dependent judgment of those lawyers.
McKinneys, EC S-23.
The following notes of judicial opinions are provided:
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...the more fact the lawyer is actually paid by some entity other than the client does not affect that relationship, so long as the lawyer is selected by and is directly responsible to the client...Of course,
...there must be full disclosure of the arrangement by the attorney to the client... AllA Opinion 320(1968).
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An attorney representing a client in litigation may not accept employment from an adverse party in that litigation even-in unrelated matters.
N.Y. County 620 (1973).
Clearly, the 26 employees did not independently select i
the two firms that are representing them.
As was evident from the company letter of April 18, 1980 to the employees, i
j the company selected the two firms. (5)
The employees i
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' were directed to the company lawyer, John Wilson, j
to discuss their representation.
Although the employees signed consent forms, there is no convincing evidence that this consent indicated a true choice.
Were the employees I
informed that they have potential claims against the company and that these firms would not be able to represent those interests?, In the case of Maupin, the client was not informed i
of the firm's representation of company interests until I
this year although the relationship began in 1980.
(6) although the law clearly states the informed consent means i
4
" full disclosure of all facts and circumstances".
See McKinneys, EC 5-21; D.R.
5-105(C);
N.Y. County 640(1974).(7) a I
(5) Provided at Att. 2, Response of En cloyees, March 3, 1986.
j (6)
Maupin Affidavit, March 3, 1986, pp.3-5 l
(7)
The Isham, Lincoln & Beale firm provided no information concernin Response, g informed consent of their employee client.
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Isham et al.,
March 3, 1986.
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l We findino assurance in the response of the attorneys-for the 26 employees that these employees were fully informed and understood their potential jeopardy in agreeing to representation by the two firms selected by the company.
(8)
Clearly, all attorneys now representing employees have and continue to represent GPU, its subsidiaries or associated organizations on other matters.
(9)
Thus, none of these firms ca'n represent these employees regardless of the employees' consent. See p.5 supra.
V (N.Y. county 620(1973)).
The company concluded in 1980 that there was a conflict of. interest between Met Ed and its employees.
(10)
- Hence, the law firms used by Met Ed, its sister companies and the incorporation c'annot represent the employees. Id;EC 5-1.
(8)
The fact that the attorneys for the 26 employees found the Board's concern about their misrepresentation
" misplaced" is troubling.
Response of Employees, March 3, 1986, p.10.
We alsoremember the lead attorney's attempt to mislead the Board.
See Transcript, pre-hearing conference, March 7, 1986 at SI-3(Aamodt) and 27 and 37 (Voigt). With the exception of the executive employee (John Herbein), it is doubtful that the employees would have the legal sophistication to.
deal with misrepresentations or withholding by the attorneys.
(9)
Response of Employees, Att.2: Maupin Affidavit, pp.3-5:
Isham et al. did not declare on this matter (all documents dated March 3, 1986).
(10) Response of Employees, March 3, 1986, p.10.
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Informed Legal Opinion.
The Board stated that we should either present rules from the Code of Professional Responsibility or informed legal opinion.
We have chosen the former course in view of the clarity of the rules: these were supplemented with judicial opinions.
We object to the use of the decision and opinion of Judge Sylvia Rambo.
The decision was clearly in error and was not based on the facts and the rules of professional responsibility.
Judge Rambo did not make a prima facie decision, as such, citing no former decision 1n favor of dismissal in that circuit.
Her standard that actual conflicts needed to be demonstrated is not responsive to the rules ofprofessionalconbuct.
See rules, p.3 supra.
(11)
Other judicial opinion relevant to propriety support the Aamodt motion (p. 8, para. 3,4; p. 9):
An attorney must avoid not only the fact, but even the more appearance of impropriety and conflict of interest.
Flushing Sav. Bank v.
FSB/ Properties, Inc., 1984, 105 AD. 2d 829, 482 N.Y.S.2d 29.
Parties to an action and the public at large are entitled to protection against the appearance of the propriety on the part of an attorney and the risk of prejudice attendant on an abuse of confidence however slight.
Id.
(ll)kiler opinion that apparent false evidence was superior i
to no evidence (witnesses taking the Fifth Amendment) clearly casts doubt concerning the correctness of the decision.
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As a resul t of Judge Rambo's denial of the U.S. Attorney's l
request ior a dismissal of the attorneys, the Department of Justico dism!!; sed the Grand Jury which resul t ed in of DOJ's reso1 nion
(,t~ t.he i rives t i qa L i on ior over Iwo year:.
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. The standards of professional ethics dictate that a" party and the public at large are entitled to protection against the appearance of impropriety and the risk of prejudice attendant on abuse of confidence, however slight, and to that end a disqualification may be required.
Narel Apparel Ltd., Inc. v. American Utex Intern., 1983, 92 A.D.
2d 913, 460 N.Y.S. 2d 125.
In supervising conduct of its officers, courts have as a responsibility the maintenance of public con-fidence in the legal profession and system of justice; therefore, a court may disqualify an attorney both for actual improper conduct and, of equal importance, where there is an appearance of impropriety, even in the absence of actual misconduct.
Flushing Sav.
Bank v. Ahearn, 1983, 96 A.D.2d 826, 465 N.Y.S.2d 574.
The public, in general, and the TMI area public, in particular, have great interest in TMI-related pro-ceedings, thus requiring the consideration of the appearan'cce of propriety.
f 4.
History of htto'rneys' Conduct.
l The Board indicated its interest in having "a copy l
of the relevant portion of the record" to Mrs. Aamodt's 1
The portion of the record where the matter was raised is attached.(Attachment 1).
As can be seen, the matter was discussed off the record on the request of GPU's attorney.
The matter was raised and came up the following day.
We do not have that portion of the transcript (Tr.26,910; 26,948-9 generally), however it will be supplied as l.
l We request the Board to reconsider the relevance i
of this issue in view of the judicial cites above (Gection 3).
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5.
Discussion.
The Board cited (Memorandum & Order, p.16) from the American Bar Association general rule concerning conflict of interest.
We believe that the Board has not addressed the particularized explanations of the rule as provided above.
The provision for multiple representation provided in the general rules do not apply in the case of litigation (with the exception of unusual and very limited instances) or where there are differing or potentially differing interests.
The code of professional responsibility clearly defines circumstances where multiple representation is appropriate, i.e.,
where interests are neither differing or potentially differing in the case of litigation or in matters not involving litigation where tnere are potentially differing interests or interests vary only slightly.
McKinnoys, EC 5-15.
The remedies of full disclosure and informed consent are only curative in those instances where multiple representation has been deemed appropriate because of unusual and very limited litigation or where litigation is not involved and interestsare only potentially or slightly differino.
Clearly, in the instant case, the rules foreclose /
the multiple representation of the 26 employees by LeBoouf et al. and Killian & Gephart.
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. The payment of legal fees by GPU and its subsidiaries could represent a third party influence on the participation of the employees.
The fact that these companies selected the attorneys makes it eminently clear that that is the case.
Further, these legal firms already represent GPU making there representation, in any case, contrary to rules.
The attorney arrangements for the employees are clearly not appropriate, and they appear inappropriate to even someone unacquainted with the rules of professional conduct.
(12)
Appearance of impropriety constitutes adequate grounds for dismissal.
The employees,would not be deprived of their fundamental right to counsel.
GPU, having agreed to prior indemnification of the present attorneys, should be willing to prior indemnification of attorneys of the employees' personal and private choice.(13)
Those employees who have no difference in interest as judged by themselves, the record and their attorneys, can legitimately be represented by the same attorney.
(12)
The Aamodt motion of March 14, 1986 serves as evidence of the appearance of impropriety in the attorney arrangements.
(13)
The company should reimburse the employee for his legal fees.
The arrangement whereby pays the company is questionablethe company directly i f not improper.
See Aamodt motion at p.4.
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w While delays are inherent in a dismissal of the attorneys, greater delay can result when a ' crying' need for dismissal becomes apparent during the hearing.
Fairness to the employees dictates the need to address the matter at this point as does fairness to the public.
The resolutions in future employement of the employees under suspicion will have far-reaching effects in the nuclear
- industry, i.e.,
the morale of the employees ((10) and consequent health and safety effects on the public, as well the public's view of the NRC administrative proceedings.
THEREFORE, the Aamodts supplement their shotion of March 14, 1986 for the dismissal of the attorneys of the employees. ;
Respectfully submitted, p
. N6. c r U.U / J ' - TLlu fdk Marjcfrie M. Aamodt hy'~h ML, ti ut &E lejg4, Norman O. Aamodt Committee on Health Aspects & Management of Nuclear Power Box 652, Lake Placid, N.Y.
12946 Tel. 518-523-2370 April 17, 1986 O
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Y7T 1that period, but I do not remember the details very n '., l 2 clearly.
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Q Was individual 00 on your shif t at that time?
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Yes, 00 va on my shift at that time.
You are q
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5 referring to the April licensing exam?
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And did you have training sessions and
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7 vould individual 00 have been part of those training
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A We did have training sessions on shift, and 00 M.;
10 vocid have been part of the training sessions, yes.
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&hh 12 MS. BRADFORD:
I have no further questions.
Thank l
13 you.
14 BY MRS. A AMODT l.'y 15 0
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Mr. P, did anyone discuss Mr. Ward's testimony 18 w it h you since tha beginning of the sequestration order G
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( Pause. )
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Someone discucced Mr. Ward's implication that I g
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That someons is the compe.sy lawyer, Ms. Gottlieb.
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Prior to July 1981 39 JUDGE.".ILilOLLIN What did Ms. Go ttlieb discuss
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MR.,BLAKE4 Judge Milho111n, do you really regard j
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6 JUDGE MILHOLLIN:
All right.
7 MR. BLAKE:
I would at least want to ; tart 8 the re a t the minimum.
9' JUDGE MILHOLLIN:
Very well.
All right.
10 (Bench conference was held.)
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. n. ~.n UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Presiding Board In the Matter of
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INQUIRY INTO
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Docket No. LRP THREE MILE ISLAND UNIT 2
)
LEAK RATE FALSIFICATION
)
CERTIFICATE OF SERVICE I certify that copies of SUPPLEMENT TO AAMODT MOTION FOR DISMISSAL OF ATTORNEYS Providing Judiciary Law, dated March 17, 1986, were served upon the following persons by deposit in U.S. Mail, Express delivery where marked (*) or first class, postage prepaid, today, April 18, 1986.
Chief, Docketing & Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- James B.
Burns, Esq.
Isham, Lincoln & Beale
,' Presiding Board, the Honorables 3 First National Plaza James L. Kelley, Chairman Suite 5200 Glenn 0. Bright Chicago, IL 60602 Jerry R. Kline l
Atomic Safety and Licensing Board Panel
- Michael W. Maupin U.S. Nuclear Regulatory Commission liunton & Williams Washington, D.C.
20555 707 E. Main St.
P.O.
Box 1535 Jack R. Goldberg, Esq.
Richmond, VA 23212 Mary Wagner, Esc.
s Office of the Executive Legal Director-U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Ernest-L. Blake, Esq.
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/3 Shaw, Pittman, Potts & Trowbridge L g2,'(q p//],
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f{Marj6ricM.
1800 M Street, N.W.
Washington, D.C.
20036 Aamodt liarry 11. Voigt, Esq.
LeBoeuf, Lamb, Leiby & MacRae April 18, 1986 '
l 1333 New ifampshi.re Ave., N. / W.
Suite 1100 Washington, D.C.
20036 i
Smith 13. Gephart, Esq.
Killian & Gephart l
216-218 Pine Street Box 886 l
Ila rri sburg, PA 171011
.