State bar might take up Yucca conflict

Suzanne Struglinski

Friday, Nov. 14, 2003 | 11:17 a.m.

WASHINGTON -- Nevada's congressional delegation wants another investigation into the alleged conflict of interest of the Energy Department's former attorneys for the Yucca Mountain project.

This time the delegation wants the State Bar of Nevada to investigate.

Chicago-based law firm Winston & Strawn had conflicts of interest that could have disqualified the firm from a $16.5 million Yucca Mountain nuclear waste storage project, but there was not enough evidence from the department to show how it determined its eligibility to make a final ruling on the case, according to an Oct. 28 decision by the U.S. Circuit Court of Appeals for the District of Columbia.

LeBoeuf, Lamb, Green and MacRae, a rival law firm that had bid and lost the contract, sued the Energy Department over the contract award and the conflict of interest.

Because of the appeals court ruling, the U.S. District Court now will need to determine if or how the department ruled out the law firm's previous work for a contractor on the project and for the Nuclear Energy Institute, the nuclear lobbying group that supports the site, before it granted the contract.

But the appeals court said also the district court "shall" address whether awarding the contract to Winston violated Nevada's Code of Professional Responsibility, as set out in the Energy Department's own guidelines for selecting the firm.

The delegation sent the entire docket of the LeBoeuf court case to the Nevada State Bar Thursday, saying the court and the department's inspector general's conclusions on apparent conflicts-of-interest need examination.

"These infractions have the potential to threaten the safety of all Nevadans and have seriously tainted the veracity of DOE's Yucca license application," said Nevada Sens. Harry Reid, a Democrat, and John Ensign, a Republican, along with Republican House members Jon Porter and Jim Gibbons and Democrat Shelley Berkley.

They also included affidavits from legal ethicists Geoffrey Hazard and former Nevada Supreme Court Justice Charles Springer that each make similar claims that Winston violated state legal rules.

They want the Nevada State Bar to review the law firm's work for the department and "take immedicate disciplinary actions against the law firm" if needed.

A Reid aide said the relevancy of the state bar's rules have been an issue from the start of this case. The appeals court decision opened the door for a closer examination of its relevancy and delegation's letter aims to push it along.

"Winston & Strawn were conflicted from the start," said Berkley said. "They are in bed with the nuclear industry, and that's not the type of law firms you want to work with the Department of Energy."

She said the firm did not disclose its other ties to the nuclear industry when applying for the contract.

"There is absolutely no excuse for the omission," Berkley said.

Allen Kimbrough, the bar's executive director, said he has not seen the letter yet so he could not comment on anything.

In October 2001, Berkley sent a letter to the District of Columbia Bar, also calling for an investigation based on the same conflict of interest charges.

The letter came after the Sun uncovered the firm had been a lobbyist for NEI.

A Berkley spokesman did not know yet if she or the delegation would send another letter to the D.C. Bar. Action by that bar would hold stronger consequences for the law firm, he said.

Berkley said a disqualification by the bar would force the department to find legal counsel "that's appropriate."

It could also lead to a disqualification of the two years of work the firm spent preparing the department's application for a Nuclear Regulatory Commission license, she said.

The department insists it will meet its December 2004 submission deadline.

Winston and Strawn withdrew as counsel in November 2001 although has not admitted any conflict existed. The project has been without a lawyer sine and the department for months would also not confirm if it has selected a new law firm to pick up work where Winston left off

If a judge finds that the Energy Department didn't consider the potential conflicts with the law firm, it could award the contract to another law firm and all of Winston's work may need to be reviewed, delaying the project.

Since the ruling on Oct. 28, the department has 45 days to ask that the court rehear the case and 90 days to file with the Supreme Court. After the 45 days the court will send the case back to the District Court in Washington to be heard and a court date could be set anytime after that. The department could not be reached to determine if it will appeal the case or to comment on the delegation letter. The NEI had no comment on the letter since anyone can file a complaint against a law firm, a spokesman said.