Yucca law firm remains silent on conflict probe

Benjamin Grove

Monday, Sept. 24, 2001 | 9:19 a.m.

WASHINGTON -- Lawyers at the Chicago law firm handling legal work for the Yucca Mountain project -- subjects of an ongoing federal conflict-of-interest investigation -- are still mum about the allegations.

Seven weeks after the Department of Energy's inspector general launched an investigation into the dealings of Winston & Strawn, the firm's lawyers will not publicly clarify their relationships with the DOE and the Nuclear Energy Institute, a leading pro-Yucca lobby group.

Winston & Strawn officials have issued a one-sentence statement through the company's public relations firm: "Winston & Strawn continues to believe that there has been no conflict with respect to its work for the Department of Energy."

At the heart of the law firm controversy is the Department of Energy, which manages the proposed Yucca project, a federal plan to bury 77,000 tons of the nation's high-level radioactive waste at the site 90 miles northwest of Las Vegas.

DOE officials are finalizing years of study at the mountain; the DOE is preparing to file for a license to bury the waste there. The DOE must apply for a license with the Nuclear Regulatory Commission before it ships waste to the site.

The DOE in 1999 hired Winston & Strawn to help the department review the license application. The DOE agreed to pay the firm $16.5 million for the 38,900-man-hour job -- large even by international firm standards.

In July the Sun uncovered a possible conflict of interest: Winston & Strawn lawyers also were paid by the Nuclear Energy Institute for six years to lobby in Washington in favor of the controversial Yucca project, which Nevada officials strongly oppose.

Nevada officials objected because the DOE is supposed to remain independent and unbiased throughout the selection process.

Winston & Strawn severed its ties with NEI in July, just a few days after the Sun sought comment from the firm.

Nevada officials urged DOE Inspector General Gregory Friedman to investigate, which he agreed to do Aug. 3. That investigation is ongoing.

The Sun since July has sought to obtain a list of Winston & Strawn lawyers who worked on the DOE Yucca application -- along with a list of firm lobbyists who worked for NEI. Comparing those lists would shed light on whether the same lawyers were working for both the DOE and NEI, a possible impropriety.

The firm has not released the lists, nor has the DOE.

Repeated calls to Winston & Strawn have been referred to the law firm's New York-based public relations agency, the Dilenschneider Group. Dilenschneider's Chuck Connor communicated with the Sun through e-mail, but would not answer questions. Among the questions: Did the firm violate the multimillion-dollar contract it signed with the DOE?

The Sun, through the Freedom of Information Act, obtained the DOE-Winston & Strawn contract. The contract contains an "organizational conflicts-of-interest clause" that requires the firm not be biased "because of its financial, contractual, organizational, or other interests which relate to the work under this contract."

It does not appear Winston & Strawn violated that clause because it forbids bias -- not potential conflicts of interest, said UNLV law professor Jeff Stemple, who reviewed that section of the contract.

"They clearly have a conflict; they don't necessarily have a bias," he said.

Sen. Harry Reid, D-Nev., is not surprised the firm's lawyers won't talk.

"It's an obvious conflict of interest," Reid said. "How can they talk their way out of it? They're in big trouble, and the less they talk -- from their perspective -- the better off they'll be."

"They (Winston & Strawn) are playing a very dangerous game," Rep. Shelley Berkley, D-Nev., said. "They had no business working for both the Department of Energy and Nuclear Energy Institute in the first place."

NRC officials said they cannot comment yet on whether it was inappropriate for the DOE to hire a pro-Yucca firm to review its Yucca license application -- even though it will be the NRC's job to approve it.

"The DOE needs to respond on Winston & Strawn's contract," NRC nuclear waste program manager William Reamer said. "It is premature (for the NRC) to say at this point."

Expert opinions differ on whether Winston & Strawn is breaking any rules.

"It's a close call," said Robert Drinan, legal ethics professor at Georgetown University. "You could say that they have taken themselves out of the conflict" by severing ties to NEI.

"They're not contaminated forever."

On its face the firm's relationship with NEI may not sit right with Nevadans, but it's probably not an improper relationship, said Seth Rosner, a 40-year veteran lawyer, former professor and former chairman of the American Bar Association's ethics committee.

According to legal ethics rules used in most states, a firm cannot represent two clients that have "adverse" interests, Rosner said. It appears the DOE and NEI do not, he said.

The firm may have good reasons for not disclosing documents that clear them of suspicion, Rosner said.

But Rosner added, "My first instinct, if I were making the decisions at Winston & Strawn, would be to make those disclosures, and to make those disclosures (in concert) with the Department of Energy."

Sun reporter Mary Manning contributed to this article.