ML20155G680
| ML20155G680 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/05/1986 |
| From: | ISHAM, LINCOLN & BEALE, PENNSYLVANIA ELECTRIC CO. |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20155G658 | List: |
| References | |
| 86-519-02-SP, 86-519-2-SP, LRP, NUDOCS 8605070078 | |
| Download: ML20155G680 (7) | |
Text
,
$7tg UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION N
W ~5 mo;55
}
Grr In the Matter of
)
00c2[y;g.
)
DockeER4kth LRP.
INQUIRY INTO THREE MILE ISLAt4D
)
ASLB No. 86-519-02 SP UNIT 2 LEAK RATE DATA FALSIFICATION)
)
REPLY OF ATTORNEY'S FOR JOHN G. HERBEIN TO SUPPLEMENT TO AAMODT MOTION FOR DISMISSAL OF ATTORNEYS on March 26, 1986, the Board permitted the Aamodts to supplement their motion to disqualify several attorneys "with an explanation of how.
the present arrangements for counsel conflict with the Rules of Professional Conduct.
Order, March 26, 1986, at 17.
While Mrs. Aamodt apparently conceded the propriety of GPU's payment of Mr. Herbein's legal expenses at the April 24, 1986 hearing,-we nonetheless respond to the motion here to assure the Board that Mr.
Herbein is receiving professional, independent representa-tion by counsel of his choosing, pursuant to an arrangement that is proper under the rules.
As we have already indicated to the Board, our fees arising from representation of Mr. Herbein are being paid by GPU.
(Letter of James B.
Burns to the Board, March 3, 1986).
Payment by a third party for legal representation is not improper, and in fact, is explicitly permitted, when certain requirements are met.
The fee arrangement with GPU satisfies every such requirement.
Thus, no impropriety attaches to GPU's payment of Mr. Herbein's legal expenses.
~
8605070078 860502 PDR ADOCK 05000320 C
. s The fee arrangement with GPU is governed by Rule
- /
- 1. 8 ( f) of the ABA Model Rules of Professional Conduct,-
which provides:
A lawyer shall not accept compensation for repre-senting a client from one other than the client unless:
(1)
.the client consents after consultation; (2) there is no interference with the lawyer's independence of professional judgment or with the client-lawyer relationship; and (3) information relating to representation,
of a client is protected as required by Rule 1.6.-,/
We will address these requirements in order, but we first note that the comments to the rules specifically anticipate and permit the present fee arrangement if the above require-ments are met:
A lawyer may be paid from a source other than the client if the client is informed of the fact and consents and the arrangement does not compromise the lawyer's duty of loyalty to the client.
See Rule 1. 8 (f).
[W] hen a corporation and its directors or employees are involved in a
~
controversy in which they have conflicting interests, the corporation may provide funds for separate legal representation of tee directors or employees, if the clients consent after consultation and the arrangement ensures the lawyer's professional independence.
(Comment to Rule 1.7, at 01:119) (emphasis added).
The fee arrangement with GPU satisfies the criteria of Rule 1.8 (f).
First, Mr. Herbein consented to the arrangement
/
In their supplemental filing, the Aamodts argue, inter alia, that the attorneys must be disqualified because they represent GPU in other matters.
This firm has never been involved with GPU in any matter other than the representation of Mr. Herbein.
Thus, the only issue is the propriety of the fee arrangement.
- /
Rule 1.6 governs disclosure of information by an attorney.
after consultation.
Attached as Appendix A is a letter from GPU to Mr. Herbein describing the availability, under Pennsylvania law, of advances for legal expenses incurred in connection with this proceeding.
Mr. Herbein consented to the fee arrangement described in the letter after consulta-tion with his attorneys.
(Appendix A, at 3).
As is clear from the text of the letter,_ this was not the first such agreement entered into by Mr. Herbein.
GPU has paid our fees pursuant to identical agreements throughout the nearly five years in which we have represented Mr. Herbein in TMI-related matters.
At numerous times during those five years, Mr. Burns and Mr. Herbein have discussed the fee arrangements.
Mr. Herbein is fully aware of the arrange-ment's implications, and has repeatedly indicated his desire for this firm to continue representing him.
Second, there is simply no reason to believe that accepting payment from GPU will in any way affect our repre-sentation of Mr. Herbein.
We do not answer to GPU; we answer only to our client.
We recognize the strictures of Rule 5.4 (c) :
A lawyer shall not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering cash legal services.
We have always represented Mr. Herbein in an independent, professional and zealous manner, and we will continue to do so.
n ~
Third, we owe to Mr. Herbein the same duty and responsibility of confidentiality that we owe to every client.
We have not violated Mr. Herbein's right to con-fidentiality, and we will, of course, not do so in the future.
As the foregoing discussion demonstrates, our representation of Mr. Herbein amply meets the standards imposed by the Rules of Professional Conduct.
Therefore, we request that the Board lay this matter to rest, and deny the Aamodts' motion for disqualification.
Respectfully submitted,
/'
a
,/
) ()
Bye - U $
-4
- \\ I.,
ilf
' Attorneys for John G. Herpein' ISHAM, LINCOLN & BEALE Three First National Plaza Suite 5200 Chicago, Illinois 60602 (312) 558-7500 i
i L-
APPENDIX A s
j'f f()
Metrooolitan EdiIon Company I,-
w- --
Post Office Box 542
+
Reading Pennsylvania 19640 215 929 3601 Writer's oirect Dial Number January 17, 1986 CONFIDENTIAL AND PERSONAL John G. Herbein Penelec Johnstown
Dear Mr. Herbein:
By an Order and Notice of Hearing dated December 18,1985, the Nuclear Regulatory Cocmission ("NRC") instituted a hearing to develop the facts concerning any falsification of leak rate data at Three Mile Island Nuclear Station, Unit 2 between February 2,1978 and March 28, 1979.
It is our understanding that the NRC has notified you as being one of so=e 120 individuals who were involved in, or were likely to have had knowledge of, reactor coolant system leak rate data, testing or reports at TMI-2.
The NRC notice provides you with the opportunity to participate as a party in the hearing. Whether or not you elect to participate as a party, the NRC notice cautions that you may nevertheless be subpoenaed as a witness.
Pursuant to Section 1410 of the Pennsylvania Business Corporation Law
("BCL"), the Board of Directors of Metropolitan Edison Company (" Company")
previously authorized the officers of the Company to enter into agreements whereby (subje-t to the terms of such agreements) the Co=pany would advance to e=ployees requesting such advances the reasonable attorneys fees and expenses of legal counsel in advising such employees with respect to the investigations by the NRC and the U.S. Attorney of TMI-2 leak rate practices. Section 1410 of the BCL per=its such advances only if the employee receiving such advances agrees to repay such advances to the Company unless it shall ulti=ately be determined that he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Company.
So=e time ago, you entered into such an agreement with the Company, which you will recall is terminable by the Company with respect to any expenses incurred by you af ter the delivery to you of a notice of such termination.
ww a
- By its terms -that agreement is applicable to the NRC proceeding initiated by the NRC's Order and Notice of Hearing dated December 18, 1985.
I However, _ in view of the fact that it has been some time since you signed that ag re ement, the Company will make such advances to you for the current NRC proceeding only if you so request and also affirm that you acted in good faith and in a manner you reasonably believed to be in, or not opposed to, the best j
interests of the Company.
I should like to re emphasize the Company's position with respect to cooperation with governmental bodies set forth in a letter dated October 9, 1981, a copy of which is attached for your reference.
If you elect to continue to be represented by legal counsel, we urge that you call t_o your_
counsel's attentg the Compap_pos_i_tio,n,witareyp.ec,c t.o acopegation with m
movarnmentsi Sndsae.
We anticipate that you would make every effort to have your counsel conduct himself in a way which is consistent with__th u olicy while fully protecting your individual interests.
If you wish to receive advances for legal expenses on the basis set forth above, will you~please sign and return the enclosed copy of this letter which will constitute the affirmation and undertaking by you required by the statute. Any questions which you may have regarding the interpretation of this arrangement should be directed to John Wilson at (201) 263-6136.
I l
Sincerely, t
Henry}L. Robidoux
/
./
Vice President Enclosure m
.__.___m_______
"S y
I acknowledge receipt of the foregoing letter.
The arrangements therein set forth are satisfactory to me.
I hereby affirm that I acted in good faith and in a manner I reasonably believed to be in, or not opposed to, the best interests of Metropolitan Edison Company.
I hereby request that advances be made to me in accordance with the terms of the foregoing letter.
g
/
e
- m