Judge clears Duke Energy attorneys

January 19, 2009

Attorneys for Duke Energy, including its local counsel, won't face disciplinary actions over misrepresentations made about the status of a witness in a federal trial last May about air pollution violations.

But U.S. District Judge Larry J. McKinney on Jan. 12 ordered Duke to pay plaintiffs' attorney's fees. He also stood by his earlier decision to order a new trial in the case because of attorney conduct.

"Setting aside a verdict is a harsh penalty ... a harsh penalty called for by what the court considers the egregious nature of the attorney inaction," McKinney wrote.

Duke largely prevailed in the May trial brought by the U.S. Environmental Protection Agency, state regulators and environmental groups over U.S. Clean Air Act rules. The jury found that a utility Duke later acquired, Cincinnati-based Cinergy, violated federal rules at its Wabash plant in Terre Haute. But the jury cleared the utility regarding pollution-control modifications made at other generating plants in Indiana and Ohio.

The judge said most of the Duke counsel, including those from the local office of Cincinnati-based Taft Stettinius & Hollister LLP, weren't aware of a consulting agreement between the utility and a retired plant manager who testified in the May trial.

Those local Taft attorneys were Scott Alexander, Robert Clark and John Papageorge, along with Debra McVicker Lynch, who now is a federal magistrate judge.

The Duke case was quarterbacked by the utility's counsel in Washington, D.C., Sidley Austin LLP. At trial, Duke made a big deal about federal attorneys' using paid witnesses while presenting its own witnesses as current or retired working people who were more trustworthy and believable.

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