ML20155G706
| ML20155G706 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/02/1986 |
| From: | Voigt H LEBOEUF, LAMB, LEIBY & MACRAE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20155G697 | List: |
| References | |
| LRP, NUDOCS 8605070089 | |
| Download: ML20155G706 (9) | |
Text
._
i Q
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00CMETED USHRc BEFORE THE PRESIDING BOARD 26 My.5 pq n KliYE.{'j,
)
In the Matter of
)
3hANCW
)
INQUIRY INTO THREE MILE ISLAND
)
Docket No. LRP UNIT 2 LEAK RATE DATA
)
FALSIFICATION
)
)
RESPONSE OF EMPLOYEES TO SUPPLEMENT TO AAMODT MOTION FOR DISMISSAL OF ATTORNEYS In its. Memorandum and Order of March 26, 1986
(" Order"),
the Presiding Board directed Marjorie M. and Norman O. Aamodt, if they chose to press their Motion for Dismissal of Employees' 1
Attorneys filed on March 14
(" Motion"), to supplement that motion with an explanation of how, in their view, the present arrangements for the legal representation of the Employees by LeBoeuf, Lamb, Leiby & MacRae and Killian & Gephart conflict with Rules 1.7 (b) and 5.4(c) of the American Bar Association
("ABA") Model Rules of Professional Conduct ("Model Rules") or other principles cenerally accepted by the courts.
The Board directed that the explanation include specific references to the particulars of those arrangements and expressed on interest in any judicial decisions indicating that those arrangements are unacceptable and in any opinions of counsel experienced in f
conflicts of interest.
t g5 Mu M$la G
\\
+v9-
_-.----,-7
T Upon review and consideration of the Supplement to Aamodt Motion-for Dismissal of Attorneys filed on April 18
(" Supplement"), we find that it adds nothing to the arguments presented in the Motion.
For the reasons set forth below as well as for those set forth in the Response of Employees to 4
Motion for Dismissal of Employees' Attorneys filed on March 24
(" March 24 Response"), the Motion should be denied.
General Comments The Supplement is unresponsive to the Board's preliminary conclusion that the "Aamodts have misconceived the standards applicable to questions of representation and payment of counsel."
Order at 15.
As we previously indicated in the March 24 Response, the Motion is an ill-conceived attempt to deprive the Employees of their Constitutional right to be represented by legal counsel of their choice.
For example, the Motion reflects a failure to understand the need for counsel with an expertise in nuclear energy reaulation.
The Employees cannot be expected to retain individually counsel with either our current level of expertise in nuclear energy and, in particular, leak rate testing, or with an ability to acquire that expertise in any reasonable amount of time.
- Thus, disqualification would in fact deprive the Employees of their fundamental right to effective legal counsel.
Moreover, both the Motion and the Supplement fail to acknowledge that an attorney may represent a client even with -.
e' an actual conflict of interest if the client consents to the representation after full disclosure.
Model Code of Professional Responsibility DR 5-105.
As we indicated in the Response of Employees to Memorandum and Order of February 14, 1986 filed on March 3
(" March 3 Response"), we have discussed with each of the Employees the potential for conflicts of interest.
If an actual conflict arises in this proceeding, we will discuss it with the affected Employees and either withdraw or secure their consent to our continued representation.
One attempts to summarize the Aamodts' pcsition at his peril.
We think it is fair, however, to observe that:
1.
The Aamodts have finally conceded that there is nothing wrong with Met Ed paying the Employees' legal fees.
Tr. 201.
2.
The Aamodts object to our representing the Employees because we represent "the company",-even though Judge Rambo in 1981 found that we do not based on the same documents and facts, and the Aamodts have adduced no new documents or facts to challenge the 1981 finding.
3.
Although the Aamodts claim to be concerned about
"[f]airness to the employees", Supplement at 11, they seek to l
deprive our clients of the right to be represented by counsel in whom those clients have reposed their trust and confidence for six years.
There is not one shred of evidence that any Employee wants to change l'awyers at this late date.
The Aamodts acknowledge that: "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."
Supplement at 10.
The Aamodts have failed to advance anything beyond speculation and rhetoric to make LeBoeuf Lamb and Killian & Gephart an exception.
Specific Comments The Supplement relies on neither the Model Rules nor on the Disciplinary Rules of the Model Code of Professional P
Responsibility ("Model Code").1/
Rather, it cites several Ethical Considerations of the Model Code, which, as opposed to the Disciplinary Rules, are not mandatory norms of conduct.
The Ethical Considerations " constitute a body of principles upon which the lawyer can rely for guidance in many specific situations."
Model Code of Professional Responsibility, Preliminary Statement.
We are guided by the Ethical Considerations cited in the Supplement and are confident that we can continue to represent the Employees in this proceeding i
j without encountering an actual conflict of interest.
Second, EC 5-15, cited in the Supplement, like the case law cited by Judge Rambo in her April 8, 1981 Memorandum, see l
March 3 Response Attachment 1 at 2, reauires an actual conflict of interest to necessitate the withdrawal of an attorney.
If 1/
The Model Code was adopted by the ABA House of Delegates on August 12, 1969.
Most state and federal jurisdictions have subsequently adopted it.
The Model Rules
(
L were adopted by the ABA House of Delegates on August 2, 1983.
I i
(
an actual conflict of interest arises in this proceeding, we will withdraw or acquire the consent of the affected Employees.
Third, EC 5-18, cited in the supplement, governs the relationship of an attorney, a corporation or other entity, and the corporation's shareholders, directors, officers, employees, and so forth.
We do not represent GPU Nuclear either in this proceeding or in any other matter.
Nor have we ever directly represented GPU Nuclear in any matter.
Thus EC 5-18 is inapplicable.
Fourth, the " notes of judicial decisions" cited in the Supplement are annotations of ethics opinions of the New York State Bar Association and the New York County Lawyers Association.
These annotations are taken entirely out of context and offer no indication whatsoever "that the counsel arrangements in this inquiry are not acceptable."
Order at 17.
They are meaningless without an explanation of their factual context.
Fifth, EC 5-23, cited in the Supplement, is based entirely on Rules 1.7 (b) and 5.4(c).
Model Rules of Professional Conduct, Table B (related sections).
As the Board previously I
determined, "[t]hese rules make it clear that there is nothing inherently wrong
. with a lawyer's fees being paid by
(
sopeone other than the client Order at 16.
Thus the 1
l reference to EC 5-23 adds nothing to the Motion.
Sixth, the Supplement, like previous Aamodt filings on this issue, incorrectly assumes that we represent GPU Nuclear or its
9 subsidiaries in other matters.
Supplement at 6.
The Aamodts apparently base this belief on a reference in our March 3 Response (Attachment 2 at 1) to our representation of the Edison Electric Institute ("EEI") and other electric utility groups, the membership of which has included Met Ed.
- However, EEI, which LeBoeuf Lamb continues to represent, includes at present approximately 200 members, including GPU Corporation (but not GPU Nuclear Corporation).
There is, under those circumstances, no possibility at all that our representation of the Employees "may be materially limited" by our representation of EEI.
Model Rules of Professional Conduct Rule 1.7 (b).
Finally, the three actual judicial decisions cited in the Supplement are inapposite.2/
Each of the three cases involved only Canon 9 of the Model Code, which states that a lawyer should avoid even the appearance of professional impropriety.
The Board previously determined that no such impropriety existed.
Tr. 8-9.
We regret the apparent predisposition on the part of the Aamodts to perceive some npropriety.
However, compliance with Canon 9 cannot be judged on the basis of "merely one party's personal ideas of propriety."
Order at 17.
As judged by reasonable and ascertainable standards, there is, we believe, no appearance of l
l 2/
Flushing Savings Bank v. FSB Properties, Inc., 482 N.Y.S.2d 29 (1984); Flushing Savings Bank v. Ahearn, 465 N.Y.S.2d 574 (1983); Narel Apparel Ltd., Inc. v. American Utex l
International, 460 N.Y.S.2d 125 (1933).
1 - -.
t impropriety in our representation of the Employees in this proceeding.
WHEREFORE, the Motion for Dismissal of Employees' Attorneys should be denied.
Respectfully submitted, LeBOEUF, LAMB, LEIBY & MacRAE By fM fM
~
jfartner g~
Of Counsel:
1333 New Hampshire Avenue, N.W.
Michael F. McBride Suite 1100 William G. Primps Washington, D.C.
20036 Molly S. Boast (202) 457-7500 James W. Moeller Marlene L.
Stein Smith B. Gephart KILLIAN & GEPHART Jane G.
Penny 216-218 Pine Street Terrence J. McGowan Box 886 Harrisburg, PA 17108 (717) 232-1851 Attorneys for Numerous 1978-79 Employees of Metropolitan Edison Company May 2, 1986.
s e
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE PRESIDING BOARD
)
In the Matter of
)
)
INQUIRY INTO THREE MILE ISLAND
)
Docket No. LRP UNIT 2 LEAK RATE DATA
)
FALSIFICATION
)
)
CERTIFICATE OF SERVICE I hereby certify that I have served copies of " Response of Employees to Supplement to Aamodt Motion for Dismissal of Attorneys" by deposit in the United States mail, first class, postage prepaid to the following persons this 2nd day of May 1986:
Administrative Judge James L. Kelley, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Administrative Judge Glenn O. Bright Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Administrative Judge Jerry R.
Kline Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555
s.
d~
?}
Jack R. Goldberg, Esq.
Office of the Executive Legal Director U.S. Nuclear Regulatory Commission washington, D.C.
20555 Docketing and Service Branch (3)
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Ernest L. Blake, Jr., Esq.
Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
Washington, D.C.
20036 James B.
Burns, Esq.
Isham, Lincoln & Beale Three First National Plaza Suite 5200 Chicago, IL 60602 4
Michael W. Maupin, Esq.
Hunton & Williams P.O.
Box 1535 Richmond, VA 23212 4-Ms. Marjorie M. Aamodt 200 North Church Street Parkesburg, PA 19365 and P.O.
Box 652 Lake Placid, NY 12946
---ud k anna 1 o
\\
James W. Moeller 4
a e. -.. - -_... _.,
..c.,
m
. -