ML19329A806

Brief in Opposition to Motion of Squire,Sanders,& Dempsey to Dismiss Disqualification Proceedings.Motion Presents No Authority for Applying Collateral Estoppel to Disqualification of Lawyers.Certificate of Svc Encl

ML19329A806
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Site:	Davis Besse, Perry
Issue date:	02/01/1977
From:	Jennifer Davis CLEVELAND, OH
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ML19329A792	List: ML19329A791 ML19329A806
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Download: ML19329A806 (28)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COBBIESSION Before the' Atomic Safety and Licensing Special Board

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In The Matter of )

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T11E TOLEDO EDISON COMPANY and ) Docket Nos. 50-346A THE CLEVELAND ELECTRIC ILLUMINATING COMPANY ) 50-500A (Davis-Besse Nuc1 car Power S tation, ) 50-501A Units 1, 2 and 3) a ) ~

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THE CLEVELAND ELECTRIC ILLUMINATING COMPANY,) Docket Nos. 50-440A et al. ) 50-441A (Perry Nuclear Power Plant, Units 1 and 2) )

BRIEF OF THE CITY OF CLEVELAND IN OPPOSITION TO THE MOTION OF ..

SQUIRE, SA"DERS T. DEMPSEY TO

, DISMISS DISQUALIFICATION PROCEEDINGS Michael R. Callagher Vincent Campanella Attorney for Squire, Sanders & Dempsey Law Directer Robert D. liart, Esq.

630 Bulkley Building- Assistant Law Director Cleveland, Ohio 44115 James B. Davis, Esq.

(216)'241-5310 Special Counsel For the City of Cleveland Joseph Rutberg, Esq.

Chief Antitrust Counsel '

Benjamin 11. Vogler, Esq.

. Assistant Chief Antitrust Counsel

• Roy P. Lensy, Jr. , Esq.

. Counsel.

Jack R. Goldberg, Esq.

-Counsel l

For the NLO Staff

, September 15, 1976.

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INTRODUCTION The current Motion of Squire, Sanders & Dempsey ("SS&D") to Dismiss Disqualification Proceedings comes at a relatively late stade of a major antitrust review before the N.R.C. The original applications for nuclear construction licenses were filed by The Cleveland Electric Illuminating Co. ("CEI") as far back,as 1969. The City of Cleveland, Ohio (" City")

intervened in 1971. Prior to commencement of the hearings before the Licensing Board on December 1, 1975, the City filed its Motion to Disqualify SS&D. This Motion has heard on the merits and'SS&D were suspended by the Licensing Board on January 19, 1976 with the Order

. stayed.

• - The civil antitruct case of the City against CEI was not filed in the-U. S. District Court for-the Northern District of Ohio until July 1,

-1975. The City did not file its Motion to Disqualify SS&D in Federal Court until December 15, 1975. Tha hearing on the City's Motion was not held by Judge Krupansky until June 14, 15, and 16, 1976, and his Order and Opinion was not rendered until August 3, 1976.

This followed the hearing and decision of the Special Board on Feb-ruary 24, 1976, and an Appeal to the Appeal Board which rendered its Decision on June 11, 1976.

Thus the Order of Federal Judge Krupansky which SS&D seeks to use as

n. basis of collateral estoppel comes in a case filed long af ter the N.R.C.

proceedings had been under way. Further, the Motion to D,isqualify SS&D was first_ filed beforc'the N.R.C. and there extensively litigated before

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. a slmtlar motion was heard in t he

• Federal Court in Cleveland.

The: Order of Judge Krupansky la naw on appeal before the U.S. Court of Appealn for t he Sixth Circuit.

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'l. SS&D' CITE NO Alfr!!0RLTY FOR Tile APPLICATION OF COLLATERAh ESTOPPEL

'TO DISQUALIFICATION OF ATT0lWEYS.

LThe'Drief of SS&D contains much standa'rd material on;the doctrine of

. collateral estoppel but fails totally to relate that general law to the unique circumst'nces a present here. We are here dealing with the NRC's prot'ection of its own~ proceedings and its interpretation of its own

" rules- of practice. - We do not have the usual-circumstance of.a party litigating against a party. Here an intervenor seeks to disqualify the i

attorney for the. applicant in en antitrust review because of the fcet that the attorney previously represented the intervenor extensively in matters substantially related to the antitrust review.

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t A. SS&D Presents No Authority for Applying Collateral Estoppel to Disqualification of Lawyers.

Nowhere in their Brief do SS&D cite any case or ruling which holds l'

- the precise: proposition that they need here, namely that a ruling on a motion'for disqualification of an attorney by a former client in one forum.may serve as collateral estoppel upon a motion for disqualification 4

for that attorney by the former client in another forum. Absent such authority, the NRC- should be particularly hesitant about invoking col-Llateral estoppel, particularly because the NRC was the first to obtain

~ jurisdiction of disqualification, the first to litigate it, and the first to Jrule extensively on local matters pertaining to it.

! B. - Absent the Requisite Identity of Parties, Issues, Time Frames and Other Factors, Collateral Entoppel Utll Not App 1v.

3 :Of the various elements which must be present before- collateral estoppel j: can be comildured, ono Is that collateral estoppel may only be . invoked L.-

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I where the parties to the prior proceeding are identical to those tu the

-second. Collateral estoppel may then be invoked upon one of the parties to'the proceeding. McVeigh v. McCurren, 117 F2d 672 (CCA 7th 1941); and

.see 1B Moore's Federal Practice 60.411[1]. The unique feature of the present matter is that what is being sought is not collateral estoppel between parties, but between the lawyers for one party on the one hand, and a party on the other. Thus, one of the major formal requirements of collateral estopping is missing here. The rationale of collateral estoppel is present, if at all, only in a marginal way. This is generally deemed to be based upon a public policy to avoid duplicate litigation and to achieve finality. Where the issue is disqualification, which is essentially a procedural or ancillary matter, the main litiga-

c. tion continues, uhatever the outcome on disqualification. Whatever the ruling.on disqualification by either the federal court in Cleveland, Ohio, or the NRC, neither the civil antitrust case in Cleveland, nor these antitrust review proceedings before the NRC would cease to go forward on the merits. Whatever duplicate litigation might be saved-is minimal. Additionally, it should be noted that the parties before the NRC antitrust review and the parties in Cleveland are not the same.

The Antitrust Divis'on of the U. S. Justice Department has intervened and played an' active roic before the NRC, 6ut is howhere present in the federal' court case in Cleveland. The time -periods of the two cases are not identical. Before_the NRC therc.is a cut-off date that bars evidence prior to January 1, 1965. There is no such cut-of f date in the federal If

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court enne. There is not a true identity of innues even on the matter of disqualification. The nature of the representation of CEI by SS6D in the

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federal court case in Cleveland is not identical to that before the NRC.

Given the foregoing differences, collateral estoppel should not apply.

C. The Closest Analagons Legal Authorities Indicate that Collateral Estoppel is not applicable in the case of Disharment or Suspension of Attorneys.

The closest applicable legal precedents may be found in the area of the treatment by various courts of disbarment or suspension proceedings by other courts. In general, the effect of a disbarment or suspension by the highest Court of a state does not automatically justify disbarment by the federal courts. Theard v. United States, 354 US'278 1 Lawyer's Edition 2d, 1342 (1957). This is true even though admission to practice before a

-- fcdcral ecurt 10 derivative frem memberchip in a state ca""t- A 9ta"a court's determination is entitled to respect, but is not conclusively bind-ing on the federal court, or ls not binding upon the federal court "as the thing adjudged in a technical sense". Selling v. Radford, 243 US 46, 61 L Ed. 585, (1917).

Even as among federal courts, what little authority exists indicates that one federal court will not automatically suspend an attorney from the l

practice based upon the ruling of another federal court. In re Watt &

Dohan, 149 F. 1009,(C.C.Pa. 1907). This case held that thq fact that attorneys were indefinitely suspended from practice in the United States Court of Appeals for the Second Circuit, on the ground they had filed a l scandalous and insulting brief, was not sufficient in itself to justify e

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dinharment in the federal circuit court for the Eastern District of Pennsylvania. Sec also ex parte Tillinghant 4 Pct 103.7 L.rd 798, (1830 US.)

Similarly, the fact that one has been admitted to practice before one district court in one state, does not automatically entitle that lawyer to practice before ether U.S. District Courts in other states.

Application of Unsserman, 240 F.2d, 213 (9th Cir 1956) . There Wasserman, who had been admitted to practice before the Federal Courts in Arkansas was refused automatic right to practico before the Southern District of California which insisted upon an independent inquiry into his conduct and fitness to practice before it.

In a similar fashion, the disbarnent of an attorney in one state

$ does not of itself automatically affect his status as a attorney in another state. Re VanBever, 55 Ariz 368,101 P.2d, 790 (1940) Re Sizer, 134 S.U.2d, 1085, (Mo. App.1939). The Courts generally state that a final judgment of disbarment entered by the highest court of a sister state should be given full faith and credit unless the procedure therein was wanting in due process or the courts of the other state committed palpabl'c.crror. In particular,

'the opinion of the California Courts in the case of In re McCue, 211 Cal.57 293 Pac. 47, (1930) is of interest. In that case a former Montana lawyer made application to practice law in California, where his application was challenged on the basis of disbarment proceedings in Montana. Those

. charges had been ultimately been dropped for want of evidence. The lawyer claimed that the California Courts were prohibited from considering any evidence which might. tend to sustain the charges considered in the Montana

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courts, or in other words that the Montana Court Judgment be given collateral estoppel ef[cet. California court disagreed becaune although the Court

-of-Montana disbarment proceeding bo'und all persons who were parties to the proceeding in their privics, neither the people of the State of California nor any of its offdecrs or agencies were parties to that proceed-ing or had any interest therein or any right to be heard therein, and would' therefore not be bound by the adjudication. Similarly, the Nuclear Regulatory Commission; or for that matter any officer or agency of the federal government was not a party to the Ohio Federal Court disqualifica-tion proceeding, had no right to be heard therein, and would not be bochd by the adjudication.

Because neither the Federal nor State courts would give the automatic

. ,and conclusive collateral' estoppel effect to attorney suspensions that

-SS6D seeks here, the N.R.C. should reject the Motion of SS&D and complete its own disqualification' proceeding.

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- 11. Tile DOCTRINE OF COLLATE!:AL ESTOPPEL DOES NOT APPLY TO DISQUALIFTCATION OF. SSLD HEFORE Tile NRC P.ECAUSE CONTROLLING FACTS AND APPL.lCABLE LEGAL ,

RULES -U:IED BY Tile U. S. D' h fRICT COURT FOR Tile NORTilERN DISTitlCT OF OllIO CllANCED FRO:1 Til09E 'JREVIOUSLY ESTA15LLSilED BY TIIE NRC.

SS6D themselves attempt, by a Motion to Dismiss Disqualification Proceedings before the NRC to use collateral estoppel to prevent the NRC from controlling its_ proceedings.

There are however, inherent

- in the doctrine of collateral estoppel certain fundamental principles which they ignore. In general, the doctrine of collateral estoppel applies only in situations where mattcrs raised in the second. pro-ceeding are identical in all respects with those in a prior proceeding, and where the controlling facts and applicable legal rules remain un-

- - changed. Commiss4nner nf internal Revenue v. Sunnen, 33 US 591 (1947).

As the Court said in that opinion:

"But where the second action between the same parties is upon a different cause or demand, the principle of res judicata is applied much more narrowly. In this situation, the judgment in the prior action acts as an estoppel, not as to matters which might have been litigated and determined, but only as to those matters in issue or points controvert, upon the' deter.nination of which the finding or verdict was rendered. Cromwell v. Sac County, supra.(94 US'

, . 353, ~24 L.Ed. 198) (Other citations omitted). Since

' the cause of action involved 'in the second proceeding is not swallowed by the judgment in the prior suit, the parties are free to litigate points which verc not at ' issue -in the first proceeding, even though such points 'might .have been tendered and decided at c

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that time . . .And if the very same facts and no othern arc involved in the second case, a case related to a different tax year, the prior judgment will be concluulve as to the same legal issues which appear, assuming no intervening doctrinal change. But if the rc]cvant facts in the two cases arc separable, even though they be similar or identical, collateral estoppel does not govern the 1cgal

-issues which recur in the second' case. Thus the necond proceeding may involve an instrument or transaction identical with, but in a form separable from the one

-dealt with in the first proceeding. In that situation, a Court is free in the-second proceeding to make an independent ekamination of the legal matters at issue.

It may then reach a different result or if consistency in decision is considered just and desirable, reliance may be placed upon the ordinary rule of stare decisis.

'Before a party can invoke the collateral estoppel doc- .

trine in these circumstances, the legal ma,tter' raised '

in the second proceeding must involve the same set of events or documents and the same bundle of legal principles that contribute to the rendering of the first' j udgment. Tait v. Western Maryland R.Co. (U.S.)

1 . cupra. [299 US 625, 77 L.Ed. 1503, 52 Supreme ,

Court, 706] [0ther citations omitted] (Emphasis ours)

A. The Applicable Legal Rules for Diu salification as Previously deter-mined by the Atomic Safety and Licensing Appeal Board were significantly different in numerous ways from the princip1cs later utilized by Judge Krupansky.

Following. substantial prior litigation before the Atomic Safety and Licens-Ling Board, which resulted in a suspension of SSED and a subsequent hearing by 9

the Special Board, the Atomic Safety and Licensing Appeal Boa,rd, on June 11, 197@

entered a 35 page decision covering ap 'icabic icgal princip1cs for disqualifi-cation of attorneys before the Nuclear Regulatory Commission. The decision wan' based upon extensive. briefing by both sides based upon federal case l'aw and other authoritics. The decision of the Appeal Board, preceded by nearly t0o mohths the decision of Judge Krupansky, which van rendered

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Augun't ') , 1976. (For a copy of the Judge's dec tnion see SS&D's Motion to Stay Temporarily durther Disc *overy dated August 6,1976.)

. .l. 'The Appeal Board lleid that Canon 9 of the Code of Profensinnal Responsibility L'ould Be a Separate and Independent Basis for the Remedy of Disqualification. Judge Krupansky Did Not.

"If the theory of the case should ultimately rest on= Canon 9 rather than Canon 4 or 5, however, the^ remedy sought here would still be proper.

' Disqualification is an appropriate sanction for enforcement of Canon 9' " Tolos, Inc. v. Hawaiian Telephone Company Co .' , 397 F.Supp. 1314, 1315-16 (D. Havaii 1973).

(ALAB Lecision, June 11, 1976, Page 23)

Judge Krupansky, on the other hand, in his entire 41 page opinion saw no application of Canon 9, save to the situation of Daniel O'Loughlin, the SS&D partner who, for many years was chief counsel of the City Law Department. Judge Krupansky saw no application of the doctrine that "A lawyer should avoid even the appearance of professional impropriety" to any.other actions.by the numerous other SS&D lawyers involved with City

' affairs. Beyond that, he engrafted his own special condition upon Canon 9:

"In those instances wherein disqual".fication wasJordered pursuant to Canon 9, the challenged Jattorney had performed extensive services in specific matters,'or litigation in the same proceeding from which he was subsequently being disqualified."

Order of Krupansky, J. August 3, 1976, Page 39

2. The Appeal Board Held the City need Show No Breiich of

. Confidences by SS&D. Judge Krupansky Did.

The Appeal Board in its decision of June 11, 1976, expressly over-

. ruled the 'Special Board on' the necessity of finding evidence that specific confidences of the. client were breached. On page 24'of its deeinion, the e

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C Appeal lioard said as followa:

"The Special Board held, in Footnote 10 vf its opinion-that, even i f the remedy of disqualification were authorized, it should not be granted without 'hard' cvidence of injury-in-fact or at least evidence of specific interior ' confidences' that were breached.

That.is not the law. As was said 23'ycars ago by Judge Ninefeld,-in T.C. Theater Corn. v. Warner Bros Pictures, 113 F.Supp. 265, 263 (S.D.N.Y. 1953):

8I~am not in accord with Mr. Cooke that Universal is required to show that during the Paramount litigation it disclosed matters to him related to the instant case. Rather, I hold that the former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are sub-stantially related to the matters or cause of action uherein the attorney previously repre-sented' him, the former client. ' "

On the other hand, Judge Krupansky required the City-to demonstrate,

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-as part-of its case that Lansdale acquired confidentiai information from the City:

"Since the party moving for an order of. disqualification of-an opponent's counsel, charging alleged conflict of interest must overcome the burden imposed by several inter-related evidentiary hurdles, the City is thus required to prove that:

(1) a past attorney-client relationship existed between the City and Bruckcl which was adverse to Lansdale's concurrent and subsequent representation of CEI; (2) the subject m tter of those relationships was-is substantially related; and (3) Lansdale, as attorney for CEI, acquired knowledge of confidential information f rom or concerning the City actually

-actually or by operation of -law.

Order of Krupansky, J. Page 27-28. (emphasis ours)

Tho' Court went on to add a further rule of his own which totally contra-Ldicts all existing case law:

"This Court concludes that equity demands, and the

_-pragmatics of emerging specialization inherent in contemporary legal -practice dictates, that this presumption (of dlaclosure,of confidences) he rebuttable.

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,. ., . . :c The Court ended by finding that the City fa tled in it.n burden of proof of showing confidential information imparted to Lanridale. Thus, in this critical area, the law applied '" Krupansky, J. was diametrically .

opposed-to-tho' law as previously found by t.he Appeal Board and virtually every other' court in the country.

3. The Appeal Board Followed the Disciplinary Rule that Disqualification of One Member of a Firm is Disqualification of the Firm.

Judge Krupansky Created *a New Rule of His Own.

At none of the levels of the Nuclear Regulatory Commission, whether before the Licensing Board, the Special Board or the Appeal Board, was there any serious question about chis basic proposition in the area of disqualifi-

. cation of attorneys. The basic rule is Disciplinary Rulo 5-105 D:

"If a lawyer is required to decline employment cr .tc vithdrcu frc . cn cmployment under DR 5 105, nc partner or associate of his or his firm may accept or

. continue such employment." See ALAB Decision, June 11, 1976, Pages 5 and 6.

Judge Krupansky, on the other hand, applies a rule of his own:

" Imputing to an attorney in the private practice all confidential information obtained, or presued to have been obtained, by other members of his law firm may severally. limit the scope of the private attorneys' future career and the effective operation of his career, as well as the individual's right-to legal counsel of choice. The analogous rule in the private practice of law -should therefore limit the imputation of confidential disclosures, actual or presumed to only those lawyers practicing in the attorney's area of concentration.

Absent direct proof to the contrary, the attorney would not be deemed to have- shared confidential information

relating to r. ate r* and r,crvices' exclusively within the sphere of representation of another department or section of'hlu firm. This vertical responsibility rule is more acutely dramatined in the larne, departmentall::ed law firms characteristically more prevalent in an area of evolving legal speciall::ation. . .

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"The record in barren of evide.nce of actual confident ial dinclomire between Bruckel of the Public-Law Sect. Ion, and Lain: dale of the I.i tigation Section.

The Lanudal.c-Ilauser Memorandum, resulting from the White-Littic lloover Commission, attended by Lansdale and Bruckel does not support a conclusion of actual discionure for the reasons heretofore discussed in the statement of the facts herein.

Order Krupansky, J. pages 36, 37.

Previously, the Judge, on page 28 of his Opinion had required that the City prove that:

"Lansdale, as attorney for CEI, acquired knowledge of confidential information from, or concerning the City, actually or by operation of law."

The net effect. is that Judge Krupansky forced the City to show that Bruckcl obtained confidences from the City through his bond work which he then imparted to Lansdale. This mixed conclusion of fact and law is in direct and torni

. conflict with the prior determination of the Appeal Board, and every reported case.

4. The Appeal Board in Effect held: Disclosure by the Attorney is a Necessary Predicate for Univer. Judge Krupansky Ignored Disclosure.

The basic rule of multiple representation is that a lawyer may~

represent multiple clients "If it is obvious that he can adequately represent the interests of each and if each consents to the representation after full disclosure of _ the possible effect of such representation on the exercise of his independent professional judgment on behalf of cach". The Appeal Board

, went on, on Page 34 of its decision, to remind the Special Board that the question of whether t'icra uas waiver should be decided within the framework of existing' federal' case law, citing Emle Industries. Inc. v.Pa ten tex, Inc. ,

4'78 P.2d, 562, 573-74 (2d Cir. 1973) and other cases, all of which -insist

-upon the importance of full dicciosure by the attorneys. It is clear from

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R the-deciulon of/the' Appeal Board that the validity of the SSLD waiver defenne dependa to a great citent upon the discionurca made by them to the City before undertaking representation of the City in its Municipal Light Plant Mortgage Bonds. The Order- of Krupansky, J. , on the other hand, nowhere in its entire 41 page length, makes any allusion to the necessity of disclosure by SS&D. In~effect, the lega'l requirement of disqlosure by SSED was written completely out of the law by Judge Krupansky,

5. The Appeal Board and the Louer MRC Boards Found Adversity

. of Representation was Established and was Not a Serious Issue. Judge _

Krupansky Changed the Rule to One of his Own and Made It un Issue.

It is one of the fundamental grounds for disqualification of an attorney that he now seeks to rept sent a second client against a

' - - prius clieuL, whete Lhe Intetusts of the two clients are adverse. It was virtually conceded by SS6D before the NRC that the interests of the City

- of Cleveland and CEI were adverse.and that it could not there. represent CEI.unless it prevailed on its theories of waiver or estoppel. In the litigallon in Federal Court in Cleveland, the interests of.CEI and the City were even more clearly adverse because the City there sought

$327,000,000 in damages from CEI and CEI counterclaimed against the City for $5.8 million for purchases of electricity. During the, pendency of 4

- that suit, SSSD was seeking ~to represent.its client CEI against its client, tlic City. This basic adversity of position.of the clients, however, was tortured by Judge Krupansky into something altogether different.

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. .The CLty in thus required to prove that

'(1) a past attorney-client relationnhip existed be-tween the City and Bruckel which was adverse to Lansdale's conquerent and nuhsequent r 'present ation

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. of.CEI; (2) the nuhject matter of thouef relatlon:ihipn vau-Is substantia]Iy related; and (3) Iansdale, as attorney. for CET,.- acyntred knowledge of confidential

- 'information from or concerning the City, actually or "by operation of law "

The c>:traordinary standard of law here set up by Krupansky, J.

is that-the City show that the attorney-client relationship between the City _-

and1SS&D Bond Partner Bruckel was adverse to SS&D Partner Lansdale's.

' representation of CEI' .This is utter nonsence and totally garbles the

' meaning of the. Code of Professional Responsibility. Needless to say, Judge Krupansky finds that the City does not meet his self-created test cf adverse relationship. The true point,'however, is that his test has no real meaning and' flaunts the true state of the law as determined by'the Appeal. Board and other' federal courts. This simply shoks that Federal Judge Krupansky is imposing upon the City a set of rules of his own devising (that have~no relationship.to current rules of law in this area as held by virtually all other federal courts and as previously held by the NRC Appeal-Board. As the Supreme ' Court said above in Sunnen, collateral estoppel.must' be confined to situations where "the matter raised in the second suitT:is identical in all respects to that decided in the first proceeding and ,where ~ thelcontrolling - facts and applicable legal. rules remain unchanged."

It-is cicar that the rules on disqualification in Cleveland and before the ~ -

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'NRC.in' Washington could not be morcLdissimil.ar. As tlie first judicial body to have jurisdiction of the matter, the Appeal Board, 'following the authority of' numerous. Federal Appellate Courts found the applicable law for disqualifi-

. cation of attorneys before .the:N.R.C. Judge Krupansky later applied a set of) standards purely-his own. :-Under the circumntances colhateral entoppel

'does'not' apply. 'Sunnen. supra.

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• I B. The Evident iary Facta slefore' the t:nc Will be S tj:ni ficant_ly, Different From Those Prenent ed liefore JudgL Kr,upansky necause of Ilin Hearly 1rroneous-Refusal to Permit the_ City to have Any Documentary Discovery of SS&D in Total Contradiction to Previous Rulings by the Sixth Circuit Court of Appeals and the h*RC Appeal Board.

Not the least of the extraordinary-problems that thcCity confronted before Judge Krupansky, was his total refusal to permit the City to subpoena any documents from SS&D, whether during the limited discovery permitted before his hearing, or at the trial of disqualification on the merits. In discovery proceedings be5 ore the hearing, he quashed all attempts of the City to obtain documents from its lawyers with subpoenas

-duces tecum. (See pertinent extracts of his Order of February 18, 1976 attached). Likewise, at nearing, ne retused to permit tne Ulty access to one singic document of SS6D. (See extract of the Record attached).

This shocking refusal to permit a client to have one document from its own attorneys was as diametrically opposed in principle and in outcome

-as it could be from the position of the Sixth Circuit-Court of Appeals in Melamid v~ITT Continental Baking Co., 534 F2d 82 (1976) where inter-rogatories.were utilized below and impliedly approved as part of the full evidentiary hearing called for by that court on remand. Judge

. Krupansky was also totally opposed to the position of the Appeal Board and this Special Board. The Appeal ~ Board, in its decision of June 11,

. 1976,- called 'for a full evidentiary hearing and specifically held that'"the Commission's dIncovery rules would be applicable as in'any other

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case, but Llic Specin'1 lioard should use itn power to limit discovery under 10 CFR, ' 52.740, to itiaure that the proceeding to determined as expedi tiously as possible, albeit consistently with the interests of justico and fairness, with:thc full opportunity to develop all relevant facts."~ Consistent t

uith this determination and again, prior to the Order of Judge Krupansky, this Special Board has permitted documentary discovery, which promises to provide an entirely different set of controlling facts once the City is finally permitted to see its own files. The same arguments of privilege

-and excessive burdensomeness that SS&D urged upon Judge'Krupansky as reasons for denying all documentary discovery have been rejected by the NRC.

• In sum; the factual basis of the disqualification proceedings betore the NKC will be upua controlling Incts substantially ditterent from those presented to Judge Krupansky. Eith the facts differing in the two prococdings, collateral estoppel does not apply.

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III. Tile NI',C llAS ADOPTED Ti!E ABA CODE OF PROFESSIONAI. RESPONSIBILITY AS '

' ITS STAMI)A!:D OF CONDUCT, UllEREAS THE U. S. DISTRICT COURr FOR Ti!!L NORTilERN D[ STRICT OF 011I0 IIAS NOT.

An Additional reason for refusing- to apply collateral estoppel beyond the numerous differences between the law as the URC perceives Lit and Judge Krupansky perceives it, is the fact that the NRC has for-mally adopted the American Bar Association Code of Professional Responsibility:as its standard of conduct in Northern Indiana Public

, Service Company, -- ALAB-204,' RAI 74-5, page 835. An examination of the local rules of Court on the other hand discloses that the U. S.

' District Court for the Northern District of Ohio as'is the case with n numhar n F A 4 e t r 4 e t c e..r t c , h e - nee cdep :d the A7,criga,, y A33g1_

ation Code of Professional Responsibility. This is an additional reason for: refusing'to give. automatic and total obedience to the judgment of Judge Krupansky.

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IV. Col. LATERAL' ESTOPPEL RW llc RIMECTED OR OUALIFIED IN CASES UllEREIN AN INFLEXIBLE APPL.ICATION WOULD VIOLATE AN OVERRIDING PUBLIC POLICY.

P Over ~and above ' the grounds raised above in this Brief, there is an additional basis upon which the" Nuclear Regulatory Commission may dis-regard the opinion of Judge'Krupansky. Professor Moore in IB Moore's

' Federal Practice $0.405[11], discusses various cases where the Courts have-refused an' automatic application of collateral estoppel in view of public policy. In Spilker v. Hankin', 188 F.2d 35 (C.A.D.C. 1951), the

-Court of Appeals refused to give conclusive effect to a prior judgment awarding an attorney a fee based on a note when he. subsequently sought to collect on' five similar. notes , declaring that the judicial policy

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- 'uffsetutinizing utturney feu couttacus uutweished j udicial flaallLy .

Similarly here, the scrutiny of attorney conduct against the applicable-srules of:sttorney' conduct of the NRC should outweigh the consideration of Lfinality on an ancillary issue to assure that the NRC's proceedings and. procedures,are prote~cted. In NLRB v. Denver Building and Construction Trades Council, 136 F.2d, 326 (C.A. D.C. 1950), reversed on other grounds,

.3411 675 (1951), a labor union seeking to overturn an NLRB finding of an-

~

unfair labor practice contended that a prior. attempt by the NLRB to F.' obtain:a preliminary .injtinction had been -denied -by a district court'and-

.that the. prior denial was res judicata. Although denying res judicata effect3 for. want of > finality, the Court of Appeals stated that even if .

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iti;shouldl properly 2 apply, its use in such case would be inconsistent

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with the ove'rriding policy of; Congress in the area an'd it would not "be'glven effcet. See:al'no Kalh'v. Feuerstelu, 303 US 433, (1940).

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LPurnuant~to the foregolug canen, there would appear t o -be an overriding

- public interent in lrotecting i the procedures of the NRC .in this major

. :. antitrust review since. a failure to rulc or rule correctly on the issue lof. disqualification might upset four yeais of work by the commission,

- - particularly uhere the standards of professionni conduct of tho' NRC are

-clearlyf.very[differentfromthoseinvokedbyJudgeKrupanskyofCleveland.

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CONCI.USIUN~

There arc;. numerous reasons why; the holding of Judge Krupansky should ,

. _bc .disr.tssed an an aberration and given no effect before the Nuclear

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Regulatory Commission. SS&D_present.no authority for applying collateral

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cstoppel.to. disqualification of lawyers. .The requisite identity of.

? parties, issues, and time frames is lacking. Neither the rederal nor i

state courts give automhtic collateral estoppel effect to questions of

, suspension of lawyers. The basic . legal principles for disqualification previo'usly-determined by the Appeal Board were ignored or not followed.

--by Jti dge Krupansky who created special rules of his own. This Special

. . Board'has already refused to follow-Judge Krupansky'in his denials of i '

i -all: documentary discovery. This factor alone promises to alter the ,

! . entire factual basis of.the two proceedings. Collateral estoppel may i be qualified in cases where an inficxible application would violate

. public policy,' which here .'would include the NRC's interest in maintaining

.high standards of' attorney conduct in practice'before it. This Special. ,

Board should reject the Motion for Dismissal of SS&D and complete this disqualification proceeding.

Respectfully .ubmitted,

'X , cog gg James-B.-Davis s

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• ..- l Tile 110HTill'!Mi l>' ;TRICT OF O!!IO r.U l u.

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IL 'J I y I;;g. ,lG EASTEll!! . DIVISIO!!

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?. uui.i 2 .:. .:. .. : a :a  ; c,,,9 CITY OF CLEVELAllD, ) CIVIL ACTIOi,I!O. C75-SE .

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p - Ti!E CLEVELA!!D ELECTRIC )

p\((; .,

ILLUMI!!ATII:G COMPANY, et.al., ) ,

1 0 VE-s - Q 5 Defendants MEMORA!!DUM AllD ORDER M]KRUPAHSKY,J.

i

.s In a matter collateral to the anti-trust action .

brought by the City of Cleveland, plaintiff City has served I subpoenas'deces tecum upon three ati:orneys o.f the law fli'm Squire, Sanders & Dempsey, which represents defendant CEI in 1

[ the primary action. On schedules anc lists appended to the  !

i Isubpoenas, plaintiff demands production of innumerabic documents in terms and language partly specific, but mostly ambiguous. The a'ttorneys' subject to subpoena, responding by '

iand through outside c~ounsel, move for a protective order quashing said subpoenas in their entiretly, or quashing the -

duces tecum features thereof, or ordering pro' duction of i

! those documents deemed relevant by the Atomic Safety and l

I i

Licensing doard. At a hearing on February 11', 1976, the i

! Court entertained oral argument on the Motion for Protective i -

Order. l'pon consideration, _ the Motion for a Protective Order is graited, quaching only the duces tecum features of

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the r.'ub;>cenan _ in quenti,on.

I P Q 15, 1 Fed. H. Civ. P., providing for the insuance of crbpoc. c. 5ucen'tecun, is construed ,in nari 1

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i itu.perronal LJme in er.:ualning, revicuinig and evaluating the i

i demanded docuraents. Such !4otion to Compel did not material I l.i --

[ izo until- thc [ui<:hteenth da.; .uhser:nont to defendant '.s ohj ec-

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tions, even though the Court earlice directed plaintif f's - !;

fattentiontoitsfailuretodiligentlypursuethisparti- -

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- cular discovery demand. Now, as a result of the subpoenas i

herein, the documents in ' question have become the subj ect of .

l' a I4otion for a Protective Order, which the Court is disposed to grant.

Upon exhaustive examination and review of the documents subject to claimed privilege, and upon comparison of the documents lists appended to the subpoenas duces tecum i

and those submitted to the Court by defendant CEI for in- '

caidera inspectibn, the Court finds the lists to be , identical ,

I E I and that the documents therein reauested are privileged and  ;

may not be disclosed to plaintiff. $

Accordingly, the Motion for Protective Order is granted and the duces tecum features of the subpoenas in

~~..

c.uestion are hereby quashed.

IT IS SO ORDERED. -

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• Ill TilR DISTitICT CouliT 0F Tile UllITED STATE!i Folt Tile I!OltTilElul DISTRICT OF 011I0 EASTERil DIVISIO!! -

. CITY Old CLEVELA!!D, )

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Plaintiff, )

) Civil Action vs. ) No. C 75-560

)

CLEVELAND ELECTRIC ILLUMINATING )

COMPANY, et al., )

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• Defendaht's . )

. . TRAllSCRTFT OF nT.sgittJ.TTyrcATION pnecgEDIncs * *

' BEFORE THE. HON. ROBERT B. KRUPA!! SKY, JUDGE OF.SAID COURT,"COMMEllCING MONDAY, JU!IE lli, 1976, At.9: 20 o' CLOCK A~.M.

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O'J.aughlin - cronn avn11able. Anikintheeventthat T am inaccurate, I ulll be pleased to entertain any corrections. .

So, now, let us proceed i:ith the examination '

of 11r. O' Laugh 11n. .

11R. DAVIS: f4ay I simply address a few argumenbu to tile Court on the question of .

this subpoena? -

Tile COURT: , lir. Davis --

11R. DAVIS: All I am attempting to

. do -- ,

, Tile COURT: 14r., Davis, we have already

. stone over t- h .i n . Plence procccd with the examina-tion of 14r. O 'Laughlin . l'o w , 1c't's not rehash it ah.ain, ifr. Davis, please. ,

,14R. DAVIS: Without rehaching it, your ruling is on .the subpoena?

, Tile COURT: I am quashing it.

, IIR. DAVIS: In its entirety?

, TilR COURT: That 's corr'ec t , for the name rc:tnona thab I have increto fore net forth on tuo different occasions, as I have already indicated to you . . ~. fir . Davis. -

And for your ' benefit -- !!r. Xa a e, I httvc th:tt irtemoraindttm?

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, es CERTil'TCATE Ol' SEi!VICE I hereby certify that service of the foregoing Brief of the City of Cicveland has been nade upon the Secretary of the United States Suclear Regulatory Connission, Uashington D. C. 20535, Attention Chief Docketing and Service S'ection, by cailing the original and twenty (20) copics, and on the followin;; partien listed on the attachment hereto this 14th day of September, 1976, by depositing copics thereof in the United States nail, first class postage prepaid, or by hand delivery.

A .

. f N cwan L.) ly %%d '

James 3. Davir.

Attorney for City of Cleveland,0hio O

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.. J'.

D unlau V. Itigle r, Eng. , Chairman Ivan W. Smith, Esq.

Atomic Lfety'.ind 1.icensing lioat d John 1.t. Fry sia h, Esq.

1% ley,-Lardner, llollabau",h und Jacob:. Atomic Safety azul Licensing Board 615 Connecticut Avenue, N. \V.

U.S. Nuclear Regulatory Corruniusion Washin;; ton, D. C. 20006 Washington, D. C. 20555 Alan S. Ronenthal, Chairman Richard S. Salaman, Chairman Atomic Safety and Licensing Appeals' Board Atomic Safetaf and Licensing Appeals B@

U. S. Nuclea r Regulato ry Commis sion U.S. Nuclear Regulatory Commisdion

/ashington, D. C.

. 20555 Washington, D. C. 20555 br. John H. Buch .

Michael C. Farrar -

Dr. Lawrence K. Quarles Dr. W. Reed Johnson Atomic Safetf and Licensing Appeals Board Atomic Safety and Licensing Appeals 30 U.S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Comrnission Washington, D. C. 20555 ,

Washington, D. C. 20555 Howard K. Shapar, Esq.. . . .. -

Jack I3.. Goldberg, Esq.

Executive Legal Director U.S. Nuclear Regulatory Commission Office of the E:cccutive Lega.1 Director Washington, D. C. 20555 U S. Nuclear. Regulatory Commission Y[a_shington, D. C. ,2 0 5 5_5, Mr. Frank W. Karas, Chief ,

Pablic Proceedings Branch B enjam*m H. Vogler, E s q.' s 4.-

Of(i.ca n f 9 ., % < ~ f n i y .To s eph Rutb e rg, E s q.

'U.S. Nuclear Regulatory Commission Robert J. Verdisco, Esq.

Washington, D. C.20-555 Roy P. Les sy, Jr. , Esq.

Office of the General Counsel Abraham Braitman, Esq. Regulation . .

Office of Antitrust and Indemnity U. S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Wa'shington, D. C. 20555 Washington, D. C. 20555 '

Melvin G. Berger, Esq.

Frank R. C1okey, Esq. Joseph J. Saunders, Esq.

Special Assistant Attorney General Steven M. Charno, Esq. -

g Towne House Apartments, Room 219 David A. Leckie, Esq. --e Janet R. Urban, Esq.

Harrisburg, Pennsylvania 17105 Ruth Greenspah Bell, Esqb'i gM-Edward A. Matto, Esq. Antitrust Dis-ision >

Assistant Attorney General Department of Justice @Q,

-Chief, Antitrust Section Post Office Bc:c 7513 4i .

30 East Broad Street, 15th floor Columbus, Ohio 43215 Washington, D. C. 20044 Q ,

Karen H. Adkins, Esq. -

Christopher R. Schraff, Esq.- Richard M. Firestone, Esq. l A:.sistant Attorney General Assistant Attorneys General Environmental Law Section Antitrust Section 361 Ea:.t nroad Street, Sth floor . 30 East. Broad Street, 15th floor Columbus, Ohio .:3215 Columbus, Chio 1321S i

_ _._ .4 1

o ,

g IM[.el! J. S setrino, Eng. Ler.lic llent y, Esq.

Thorna e A. *Kayuha, Esq.

Ohio Edbon Cornpany DETM. (j g g Michael hi. Jiriley, Esci.

Roge r P. ige e, Esct.

47 Morth T.;. tin Street ~

Fulle r, IIcnry, IIode;c h Snyder Ahron, Ohio 4430G k'9'I f Pont Office lion 2008

,s I S _1_ L_i Toledo, Ohio 43604 John Lansdlle, Jr. , Esq.

Cuk. Langfort h Brown James R. E'dgerly, Esq.

21 Dupont Circle, N. W. Secretary and General Counsel Washington, D. C. 2'.,036 Pennsylvania Power Company

', One East Washington Street Ridhard A. Miller, Esq. New Castle, Pennsylvania 16103

'Vice President and General Counsel ,

The Cleveland Electric Illuminating Co. Donald H. Hauser, Esq.

Post Office Dox 5000 Victor A. Greenslade, Jr. , Esq.

Cleveland, Ohio 44101 - The Cleveland Elcetric Illuminating Co

. Post Office Box 5000 .

Gcrald Charnoff, Esq. Cleveland, Ohio 44101 ,

Wm.- Eradford Reynolds, Esq. .. .

Shaw, Pittman, Pott: & Trowbridge Thomas J. Munsch, Jr.., Esq. ,

910 Seventeenth Street, N. W. .

General Attorney Washington, D. C. 20006 Duquesne Light Company 435 Sixth Avenue -

David McNeill Olds, Esq. Pittsburgh, Pennsylvania 15219 William S. Lerach, Esq. .

,w Reed. Smith. Shaw & hic Clay Josepa n. 2u e s e r, nsq.

Post Office Box 2009 -

Reed, Smith, Shaw & Mc Clay Pittsburgh, Pennsylvania 15230 1155 Fifteenth Street, N. W.

Washington, D. C. 20005 Terrence H. Eenbow, Esq. ,

Winthrop, Stimson, Putnam a Roberts John C. Engle, President 40 Wall Street -

AMP-O, Inc.

New York, New York 10005

• 20 High Street '

Hamilton, Ohio 45012 Jon T. Brown, Esq. - -

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Duncan, B ro wn, Weinberg & Palmer Atomic Safet'f and Licensing Board Paw 1700 Pennsylvania Avenue, N. W. U.S. Nuclear Regulatory Comr:dssion Washing to n, D. C.

, 20006 _ Washington, D. C. 20555 s-

Docheting and Service Section -Atomic Safety and Licensing Appeal

. Office of the Secretary '

Board Panel

?U. S. Nuclear Regulato ry Commission U. S. Nuclear Regulatory Commission' Washington, D. C. 20555 Washington, D. C. 20555 1

?!lchael it. Callaghe r, Eng. Dr. Robert Lano, Chair =an C tllagher Sharp,11orman, Fulton & llollison  ?!r. Ilead, }tembe r 630 llull; ley .Itu11 ding ,

!!r. Coosihope , h.be r Cleveland, Ohio ~44115 Atomic Safety 61.icensing Board Panel 11., S. tinclear Regula t ory Coumiun ton Washington , D.C. 20SSS 4' - emesa.e e 4- , , e* eo ** .* emene.

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