Motion of The State of Nevada to Disqualify The Law Firm of Morgan ...
Motion of The State of Nevada to Disqualify The Law Firm of Morgan ...
Motion of The State of Nevada to Disqualify The Law Firm of Morgan ...
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3<br />
at 1. "In doing so, the Department accepted a firm with a conflict <strong>of</strong> interest." Id. at 2. DOE’s<br />
position is that it lawfully "waived" and "mitigated" this conflict. Id. <strong>Nevada</strong> disagrees, because<br />
the conflict is not legally waivable, and even were it waivable, DOE has unlawfully failed <strong>to</strong><br />
explain its departure from past determinations it made that <strong>Morgan</strong> Lewis was irreconcilably<br />
conflicted out <strong>of</strong> representing DOE in connection with Yucca Mountain licensing.<br />
III.<br />
Grounds for the <strong>Motion</strong><br />
As noted, <strong>Morgan</strong> Lewis currently represents over one dozen clients on matters involving<br />
DOE’s Standard Contract, including litigation against DOE for breach <strong>of</strong> the Standard Contract.<br />
Id. This Contract, the basic terms <strong>of</strong> which are set forth in section 302 <strong>of</strong> the Nuclear Waste<br />
Policy Act, as amended ("NWPA"), obligates DOE <strong>to</strong> begin accepting commercial spent nuclear<br />
fuel for disposal beginning on or before 1998. 3<br />
<strong>Morgan</strong> Lewis’ disclosure statement describes<br />
these representations as entailing work that is "factually, commercially, and legally related <strong>to</strong> the<br />
Standard Contract for disposal <strong>of</strong> spent nuclear fuel, including litigation." 4<br />
<strong>The</strong> IG Report<br />
concludes that this representation amounts <strong>to</strong> a clear conflict <strong>of</strong> interest with representation now<br />
being undertaken by <strong>Morgan</strong> Lewis for DOE in connection with Yucca licensing. Id.,<br />
Memorandum for the Secretary, at 2, IG Rept. at 4-5. Under sections 113 and 114 <strong>of</strong> the NWPA,<br />
Yucca Mountain is the only site authorized <strong>to</strong> be studied or licensed as a reposi<strong>to</strong>ry for the<br />
disposal <strong>of</strong> commercial spent nuclear fuel. In necessary effect, DOE’s failure <strong>to</strong> apply for and<br />
receive a license from the NRC for a reposi<strong>to</strong>ry at Yucca Mountain is what constitutes the<br />
violation <strong>of</strong> the Standard Contract. <strong>The</strong>refore, <strong>Morgan</strong> Lewis is not only suing one <strong>of</strong> its own<br />
clients (DOE), but it is doing so in a case related <strong>to</strong> and, in fact, inextricably intertwined with, its<br />
3 Section 302(a)(5)(B) <strong>of</strong> the NWPA. <strong>The</strong> Standard Contract is codified at 10 C.F.R. Part 961,<br />
Subpart B.<br />
4 <strong>Morgan</strong> Lewis filed a conflicts <strong>of</strong> interest disclosure statement by letter <strong>to</strong> DOE dated<br />
September 24, 2007, attached as Exhibit B. <strong>The</strong> quote is at pp. 2-3.
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