ODC, Pet v. Cynthia A. Baldwin

[J-63-2019]
IN THE SUPREME COURT OF PENNSYLVANIA
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OFFICE OF DISCIPLINARY COUNSEL, : No. 2587 Disciplinary Docket No. 3
:
Petitioner : No. 151 DB 2017
:
: Attorney Registration No. 32119v. :
: (Allegheny County)
:
CYNTHIA A. BALDWIN, :
: ARGUED: September 10, 2019
Respondent :
OPINION
JUSTICE DONOHUE DECIDED: FEBRUARY 19, 2020
In this matter, we consider the request of the Petitioner, the Office of Disciplinary
Counsel (“ODC”), to impose discipline in the form of a public censure on Respondent,
Cynthia A. Baldwin (“Respondent”),1 in connection with her representation of
Pennsylvania State University (“Penn State”) and three of its administrators during grand
jury proceedings investigating matters relating to child abuse accusations against Gerald
A. Sandusky (“Sandusky”), a former assistant football coach at Penn State. On
November 21, 2017, the ODC filed a Petition for Discipline against the Respondent,
1 Respondent was admitted to the practice of law in the Commonwealth of Pennsylvania
in 1980. She served as a judge on the Court of Common Pleas of Allegheny County for
sixteen years. In 2006, she was appointed by Governor Edward Rendell to fill a vacancy
on this Court until January 2008. She has no record of prior disciplinary infractions. From
February 15, 2010 until June 30, 2012, Respondent was Vice-President, General
Counsel, and Chief Legal Officer for Penn State.
charging her with violations of Rules 1.1, 1.6(a), 1.7(a) and 8.4(d) of the Pennsylvania
Rules of Professional Conduct relating to her joint representation of Timothy Curley
(“Curley”), Penn State’s Athletic Director, Gary Schultz (“Schultz”), Penn State’s former
Senior Vice-President for Finance and Business, and Graham Spanier (“Spanier”), Penn
State’s president (collectively “Individual Clients”) as well as Penn State (collectively with
Individual Clients, the “Clients”). In its findings and recommendations, the Disciplinary
Board of the Supreme Court of Pennsylvania (“Disciplinary Board”) concluded that
Respondent “failed to protect her clients’ right to competent counsel and entitlement to
unfettered loyalty, which serious misconduct contributed to criminal charges against her
clients, and ultimately caused certain charges to be quashed, thereby prejudicing the
administration of justice.” Disciplinary Board’s Report and Recommendations, 3/18/2019,
at 48 (hereinafter, the “Disciplinary Board Report”). The Disciplinary Board recommended
discipline in the form of a public censure by this Court. We impose discipline in the form
of a public reprimand.
I. Scope and Standard of Review
This Court recently reiterated its scope and standard of review in disciplinary
proceedings:
Our Court conducts de novo review of all attorney disciplinary
matters; however, “the findings of the Hearing Committee and
the Board are guidelines for judging the credibility of
witnesses and should be given substantial deference.”
[Cappuccio, 48 A.3d 1231, 1236 Pa. 2012)]. In attorney
disciplinary proceedings, the ODC bears the burden of proof
of establishing an attorney's misconduct by a preponderance
of the evidence. Office of Disciplinary Counsel v. Preski, 635
Pa. 220, 134 A.3d 1027, 1031 (2016). Because discipline “is
imposed on a case-by-case basis, we must consider the
totality of facts presented, including any aggravating or
mitigating factors.” Id. However, even though each attorney
[J-63-2019] - 2
disciplinary matter must be resolved according to its unique
facts and circumstances, our Court nevertheless endeavors
to maintain consistency in disciplinary matters “so that similar
misconduct is not punished in radically different ways.” Id.(quoting Office of Disciplinary Counsel v. Lucarini, 504 Pa.
271, 472 A.2d 186, 190 (1983) (internal quotation marks
omitted)).
Office of Disciplinary Counsel v. Pozonsky, 177 A.3d 830, 838 (Pa. 2018). Our de novo
review requires a review of the voluminous record presented to the Disciplinary Board in
this case, including the transcripts of testimony provided at the evidentiary hearing before
the Hearing Committee of the Disciplinary Board (“Hearing Committee”) on ODC’s
allegations of rules violations against Respondent. The disciplinary record also contains
the exhibits admitted by the parties before the Hearing Committee (all entered into
evidence pursuant to a stipulation of the parties, N.T., 5/22/2018, at 11-12). These
exhibits include, inter alia, a large number of grand jury materials (including transcripts of
relevant testimony before the grand jury, subpoenas issued by the grand jury, and
findings of fact and presentments of the grand jury),2 transcripts and legal opinions of the
Court of Common Pleas of Dauphin County and the subsequent opinions of the Superior
Court3 in the appeals from the Dauphin County court’s decision relating to criminal
charges filed against Curley, Schultz and Spanier, and the Freeh Report.4
2 The grand jury documents in the present disciplinary record were unsealed for public
review by order of the supervising judge of the grand jury dated August 30, 2019. In
addition, the parties have signed a joint notice of their understanding that, consistent with
the supervising judge’s disclosure order, all of the grand jury materials (including
previously-sealed transcripts and legal memoranda) utilized in proceedings before the
Court of Common Pleas of Dauphin County, have been unsealed.
3 Commonwealth v. Curley, 131 A.3d 994 (Pa. Super. 2016); Commonwealth v. Schultz,
133 A.3d 294 (Pa. Super. 2016); Commonwealth v. Spanier, 132 A.3d 481 (Pa. Super.
2016).
[J-63-2019] - 3
II. Factual and Procedural History
A. Grand Jury Presentment
The facts underlying the ODC’s Petition for Discipline against the Respondent are
ultimately intertwined with Presentment No. 29, issued by the Thirty-Third Statewide
Investigating Grand Jury on October 26, 2012 (hereinafter, the “Grand Jury
Presentment”). We provide this summary of facts to provide context for our discussion
and analysis of these disciplinary proceedings.
In 2009, the Office of Attorney General (“OAG”) presented allegations of
Sandusky’s repeated sexual abuse of children to a statewide investigating grand jury. Of
relevance here, the ensuing investigation uncovered two instances of abuse that took
place on the Penn State campus, one in 1998 and a second in 2001.
The 1998 incident involved an eleven-year-old boy. Grand Jury Presentment at 6.
Sandusky took the victim to the East Area Locker Room on Penn State’s campus, where
they wrestled and then used exercise machines. Id. Sandusky then insisted that they
shower together. Id. Sandusky put his arms around the victim and squeezed him, making
the boy very uncomfortable. Id. When Sandusky took the victim home, his mother asked
why his hair was wet and became concerned upon learning of the joint shower. Id. The
next morning, she filed a report with the University Police Department. Id. Centre County
Children and Youth Services were also notified, but it referred the case to the
(…continued)
4 The “Freeh Report” refers to the lengthy report prepared by Freeh, Sporkin and Sullivan,
LLP, a firm engaged by the Special Investigations Task Force on behalf of the Penn State
Board of Trustees as “special investigative counsel” on November 21, 2011. Special
investigative counsel was tasked with, inter alia, investigating the alleged failure of Penn
State personnel to respond to, and report to the appropriate authorities, the sexual abuse
of children by former Penn State football coach Sandusky.
[J-63-2019] - 4
Pennsylvania Department of Public Welfare, citing a conflict of interest due to its
involvement with the Second Mile Foundation, a charity established by Sandusky in the
1970’s that focused on assisting boys between the ages of eight and eighteen. Id. at 7.
Tom Harmon was the Chief of Police of the University Police Department in 1998.5
As his department’s investigation proceeded, Chief Harmon kept Schultz, who oversaw
the University Police Department as part of his administrative position at Penn State,
updated on its progress. Id. at 8. Schultz, in turn, kept Curley and Spanier apprised of
the investigation’s progress, primarily through email messages. Id. at 9. On June 9,
1998, Schultz sent Curley an email, on which Spanier was copied, informing him that the
Centre County District Attorney had decided not to pursue criminal charges against
Sandusky. Id. at 10. The police report of the investigation was not filed in the usual
location. Instead, it was assigned an administrative number, which made it difficult, if not
impossible, to access the report without that number. Id. at 11.
The Grand Jury Presentment also reported that in 2001, Michael McQueary, then
a graduate assistant for the football team, witnessed Sandusky with a young boy in a
locker room shower on the University’s main campus. Id. at 12. McQueary reported this
incident to head football coach Joseph V. Paterno, id. at 13, who testified to the grand
jury that McQueary described Sandusky as fondling or doing something of a sexual nature
to a young boy in the shower. Id. Paterno further testified that in turn he relayed this
information to Schultz and Curley. Id. at 14. Seven to ten days later, Schultz and Curley
5 Chief Harmon and the lead detective on the case, Ronald Schreffler, both provided
testimony to the grand jury.
[J-63-2019] - 5
met with McQueary. Id. at 16. McQueary told the grand jury that he described to Schultz
and Curley the sexual nature of what he had witnessed. Id.Schultz then decided upon a plan that involved three parts. First, Curley would
meet with Sandusky, tell him that they were aware of the 1998 incident, advise him to
seek professional help, and prohibit him from ever again bringing boys into campus
facilities. Id. at 15-16. Second, the chair of Second Mile would be notified. Id. And third,
the matter would again be reported to the Pennsylvania Department of Public Welfare for
investigation, as had been done in 1998. Id. Curley responded that he would prefer not
to report the matter to the public welfare department so long as Sandusky was
cooperative with their efforts. Id. at 16-17. Spanier was advised of the modified approach
and agreed with the decision not to report the matter to an outside agency. Id. at 17-18.
Curley then executed the revised two-part plan, conducting separate meetings with
Sandusky and a Second Mile representative. Id. at 18-19.
B. Grand Jury Subpoenas to the Clients
On December 28, 2010, Respondent received a telephone call from the OAG
regarding a grand jury investigation of multiple claims of child abuse against Sandusky.
N.T. 5/23/18, at 366. The OAG asked Respondent to accept service of four subpoenas
(which she later did), one for documents directed to Penn State and three for testimony
from Curley, Schultz, and Paterno. Id. at 367. The subpoena duces tecum was directed
to Penn State and requested "any and all records pertaining to Jerry Sandusky and
incidents reported to have occurred on or about March 2002, and any other information
concerning Jerry Sandusky and inappropriate contact with underage males both on and
off University property. Response shall include any and all correspondence directed to
[J-63-2019] - 6
or regarding Jerry Sandusky." Subpoena No. 1179, Attachment. The subpoenas to
Curley, Schultz and Paterno6 were directed to them personally, without reference to Penn
State or their employment titles. Subpoena No. 1176 (Curley); Subpoena No. 1178
(Schultz); Subpoena No. 1177 (Paterno). These three subpoenas indicated that the
witnesses were to appear to testify before the grand jury on January 12, 2011, just nine
days later. Id. Curley and Schultz were not served with a subpoena duces tecum.
Respondent first met with Curley in connection with his grand jury testimony in
Spanier’s office. N.T. 5/23/18, at 371. Respondent later testified that:
I explained to them [Curley and Spanier] about the grand jury,
how it was, that it wasn't like a regular courtroom, how many
people were on, that there would be thirty-some people on it,
and what they were doing, that it was an investigating grand
jury because they really didn't know what a grand jury was,
and I – I did explain that [Curley] could have a personal
attorney to go with him to the grand jury, and that, you know,
he shouldn't be nervous, just tell the truth, that's what all of
this is about..."
Id. at 371. Respondent further testified that Spanier, in Curley’s presence, instructed
Respondent to go with Curley to the grand jury; that she told them she was general
counsel and could not be Curley's personal attorney; that nothing Curley said would be
confidential; and that Curley could retain a personal attorney. According to Respondent,
Curley said that he did not know any lawyers. Id. at 372.
Respondent and Curley then met privately in Respondent’s office. Respondent
later indicated that they discussed what she had explained to him at the meeting in
Spanier’s office and reviewed his recollection of events involving Sandusky. Id. at 373-
6 Paterno retained independent counsel to represent him during the grand jury
proceedings.
[J-63-2019] - 7
74. With respect to the 2001 incident, Respondent said that "basically he told me yes, he
knew about this incident, and it had been described as horseplay." Id. Respondent’s
sole private conversation with Schultz before his grand jury testimony followed, and by
Respondent’s account, Schultz’s recollections were in line with Curley’s. Id. at 375.
Respondent indicated that “[Schultz] told me the same thing that [Curley] told me, that it
had been described as horseplay.” Id. Respondent testified that neither Curley nor
Schultz told her that a sex act had taken place between Sandusky and the boy in the
shower, id. at 376, but the record does not reflect whether or not she specifically asked
either of them whether one had occurred. During these meetings with Curley and Schultz,
there was no discussion regarding the 1998 incident, as Respondent had no knowledge
at that time that any such event had taken place.7 Both Curley and Schultz denied having
any documents relating to Sandusky’s activities. Id. at 377.
Based on these meetings, Respondent determined that their stories were
consistent, as they "told me the same thing." Id. at 375. She further decided that the
interests of Curley and Schultz were consistent with Penn State's interests. Accordingly,
she made the judgment that she could represent them both before the investigating grand
jury during their questioning. Id. at 378.
On the morning of January 12, 2011, Respondent accompanied Curley and
Schultz to interviews with an OAG representative. Report and Recommendations of the
Hearing Committee Report (“Hearing Committee Report”), Exhibit D (interview notes).
Later that day, she then accompanied each of them to their appearances before the
7 These meetings took place on January 3, 2011 and Respondent did not learn about the
1998 incident until the next day, at which time she obtained a copy of the police report.
Freeh Report at 83.
[J-63-2019] - 8
investigating grand jury. In his grand jury testimony, Curley testified that in 2001, Paterno
contacted him (and Schultz) and requested an immediate meeting regarding an incident
reported to him by McQueary. N.T. (grand jury), 1/12/2011 (Curley testifying), at 4–5.
Paterno informed them that McQueary had seen Sandusky in the shower with a child and
was “uncomfortable” with what he had observed. Id. at 5. According to Curley, when he
and Schultz later met with McQueary, McQueary told them that Sandusky and the boy
“were horsing around, that they were playful, and that it just did not feel appropriate.” Id.
at 7. Curley insisted that neither McQueary nor Paterno told them, in any form, that there
was any sexual conduct involved, including anal intercourse. Id. Curley testified that he
did not inform campus police of the incident because he did not think that what had been
reported was a crime. Id. at 12.
Curley testified that he promptly advised Spanier regarding the incident. Id. at 8.
He stated that he reported the incident to the executive director of the Second Mile
Foundation and instructed Sandusky to refrain from bringing young people into the
athletic facilities at Penn State. Id. at 10–11. Curley acknowledged that there was no
follow up investigation into the 2001 report by McQueary. Id. at 13. He denied having any
knowledge of the 1998 incident involving Sandusky. Id. at 13–14.
Also accompanied by Respondent, Schultz testified before the grand jury that he
attended a meeting with Paterno and Curley regarding the 2001 incident. Schultz
indicated that Paterno had been informed by a graduate student of disturbing and
inappropriate behavior by Sandusky in the shower. N.T. (grand jury), 1/12/2011 (Schultz
testifying), at 5. Schultz also stated that he and Curley met with McQueary. Id. at 9-10.
[J-63-2019] - 9
Unlike Curley, Schultz maintained that after talking to both Paterno and McQueary, he
was of the view that what had occurred was sexual in nature. He told the grand jury:
Q. Did you, nevertheless, form an impression about what type of
conduct this might have been that occurred in the locker
room?
A. Well, I had the impression that it was inappropriate. Telling
you what kind of thing I had in my mind without being clear,
without him telling me, but, you know. I had the feeling that
there was perhaps some kind of wrestling around activity and
maybe [Sandusky] might have grabbed the young boy’s
genitals or something of that sort is kind of the impression that
I had.
Q. Would you consider that to be inappropriate sexual conduct?
A. Oh, absolutely. Well, I don’t know the definition of sexual, but
that’s certainly inappropriate for somebody to do.
* * *
Q. We can all agree that an adult male under no circumstances
other than a doctor should be grabbing the genitals of a young
boy?
A. I agree completely with that.
Id. at 22-23.
Schultz testified that between himself, Curley and Spanier, it was agreed that
Sandusky would be instructed to never again bring children into the football building. Id.
at 11. Unlike Curley, Schultz further testified that it was his recollection that the three
administrators agreed to request the same child protection agency that had investigated
the 1998 incident be contacted regarding the 2001 events. Id.The grand jury did not question Curley as to whether he was in possession of any
documents relating to Sandusky. When asked if he had any such documents, Schultz
responded as follows:
[J-63-2019] - 10
Q. Do you believe that you may be in possession of any notes
regarding the 2002 incident that you may have written
memorializing what occurred?
A. I have none of those in my possession. I believe that there
were probably notes taken at the time. Given my retirement in
2009, if I even had them at that time, something that old would
have probably been destroyed. I had quite a number of files
that I considered confidential matters that go back years that
didn't any longer seem pertinent. I wouldn't be surprised. In
fact, I would guess if there were any notes, they were
destroyed on or before 2009.
Id. at 16.
Schultz did not deny knowledge of the 1998 incident involving Sandusky, though
he could not recall the specifics of what had occurred. He indicated that the matter was
turned over to a Commonwealth-affiliated (rather than a local) child protection agency for
investigation and that no charges were ever filed. Id. at 11. He testified that he kept
Spanier advised as matters proceeded in 1998, as “it would have been a routine way of
handling things, that I would have kept him informed [regarding the 1998 and 2001
incidents].” Id. at 17-18.
On March 22, 2011, OAG investigators interviewed Spanier, who was
accompanied by Respondent. N.T. 5/23/18, at 386-87. On March 24, 2011, a subpoena
was issued to Spanier for testimony before the grand jury on April 13, 2011. Subpoena
No. 92 (Spanier). Respondent interviewed Spanier, found his testimony to be consistent
with that of Curley and Schultz (even though their testimony was inconsistent with each
others), and thus determined that she could accompany Spanier during his grand jury
testimony. N.T., 5/23/18, at 387-88. Before the grand jury with respect to the 2001
incident, Spanier recalled that on one occasion Curley and Schultz sought his advice
regarding a matter involving Sandusky “with a younger child … horsing around in the
[J-63-2019] - 11
shower.” N.T. (grand jury), 4/13/2011 (Spanier testifying), at 14. Spanier denied that
Curley or Schultz told him that the horseplay could have been sexual in nature. Id. at 25-
26. He indicated that he instructed them to inform Sandusky that he should not bring
children under eighteen years of age into the locker room facilities and to contact the
board chair of the Second Mile Foundation. Id. at 16-17. Spanier denied any knowledge
of the 1998 incident. Id. at 34-35 (“I’m not aware of allegations against Mr. Sandusky in
1998… .”).
On November 7, 2011, the Commonwealth charged Curley and Schultz with one
count each of perjury and failure to report suspected child abuse. Hearing Committee
Report, Exhibits Q, S. Respondent advised Curley and Schultz to retain private counsel
and, at their request, made arrangements for them to do so. N.T., 5/23/2018, at 395.
She also advised Spanier to hire private counsel. Id. at 396. Newly retained personal
counsel for Curley and Schultz notified Respondent by letter that their clients each
considered her to have been his personal attorney before the investigating grand jury and
that they did not waive any claim of attorney-client privilege. Id., Exhibits K(f), K(g), M.
By letter dated June 22, 2012, Respondent, through counsel, denied the invocations of
the attorney-client privilege by Curley and Schultz, insisting that as counsel for Penn
State, she had acted solely in a corporate capacity with them before the grand jury and
not in any individual capacity. Id., Exhibit K(h).
In a letter dated December 19, 2011, counsel for the OAG advised Respondent
that Penn State’s continuing failure to provide documents in response to the subpoena
duces tecum was concerning, and implicitly threatened the university with contempt of
court “and any other appropriate measures applicable to obstruction against the institution
[J-63-2019] - 12
and those individuals responsible for these decisions.” N.T., 5/23/2018, at 402.
Respondent was subsequently served with a subpoena to testify before the grand jury on
October 26, 2012.8 Subpoena No. 883 (Baldwin). Four days prior to Respondent’s grand
jury testimony, the supervising judge of the grand jury held a conference to discuss
privilege issues raised by private counsel for Schultz and Curley. Hearing Committee,
Exhibit M. To resolve any conflicts, counsel for the OAG, Frank Fina (“Fina”), agreed not
to ask Respondent any questions that implicated confidential communications.9 Id. at 11-
12. Meanwhile, counsel for Penn State agreed to waive any attorney-client privileges,
except to the extent that such privileges existed between Respondent and Curley and/or
Schultz. Hearing Committee Report, Exhibits K(e), K(h).
During her grand jury testimony, Respondent stressed that she had made every
effort to comply with the subpoena duces tecum, but that the three administrators had lied
to her about the existence of multiple documents that reflected their detailed knowledge
and participation in the 1998 and 2001 incidents.
Q. Did they [Schultz, Curley, and Spanier] ever in any way,
shape, or form disclose to you when you were asking them for
this material anything about 1998 or 2001 and the existence
of e-mails from those events?
A. Never.
Q. We also know that Mr. Schultz had a file regarding Jerry
Sandusky in his office; and that in that file were documents
related to his retirement agreement.
8 Respondent left the employ of Penn State on July 31, 2012.
9 In a separate disciplinary complaint, ODC charged Fina with various violations of the
Rules of Professional Conduct in connection with his questioning of Respondent before
the grand jury. He later appealed the Disciplinary Board’s decision with this Court. Office
of Disciplinary Counsel v. Frank G. Fina, J-106-2019. This Court entered an order on
even date with the filing of this Opinion imposing discipline and disposing of his appeal.
[J-63-2019] - 13
There were drafts and other documents related to his
employment and his retirement and then there were
handwritten notes and e-mails pertaining to the 1998 crimes
of Mr. Sandusky and the 2001 crimes of Mr. Sandusky.
Again, same question, did he ever reveal to you the existence
of that Sandusky file or any of its contents?
A. Never. He told me he didn't have anything.
N.T. (grand jury), 10/26/2012 (Respondent testifying), at 20. In other portions of her
testimony, Respondent, in response to questions posed by counsel for the OAG, revealed
the contents of numerous communications between herself and Curley, Schultz and
Spanier. See, e.g., id. at 22.
On November 1, 2012, four days after Respondent testified before the
investigating grand jury, several new charges were filed against Curley and Schultz,
including endangering the welfare of children, obstruction of justice and conspiracy to
commit obstruction of justice. Hearing Committee Report, Exhibits P, Q, R, S, T. On the
same date, charges were filed against Spanier, including perjury, failure to report
suspected child abuse, obstruction of justice, endangering the welfare of children and
conspiracy to commit obstruction of justice. Id., Exhibit U.
In 2014, Curley, Schultz and Spanier filed motions to preclude Respondent from
testifying in the criminal trials in Dauphin County. Hearing Committee Report, Exhibit W.
The trial court denied the motions, but the Superior Court reversed and quashed all of the
perjury, obstruction of justice and related conspiracy charges. Curley, 131 A.3d at 1007;
Schultz, 133 A.3d at 328; Spanier, 132 A.3d at 498. The Superior Court concluded that
Respondent, during her grand jury testimony, had breached the attorney-client privilege.
Curley, 131 A.3d at 1007; Schultz, 133 A.3d at 326; Spanier, 132 A.3d at 498. In its
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ruling, the Superior Court barred Respondent from testifying against Curley, Schultz or
Spanier. Curley, 131 A.3d at 1007; Schultz, 133 A.3d at 328; Spanier, 132 A.3d at 498.
The OAG did not appeal these rulings, but rather entered into plea bargains with Curley
and Schultz, pursuant to which each pleaded guilty to one count of endangering the
welfare of children. Spanier’s case proceeded to trial, which resulted in a guilty verdict
on one count of endangering the welfare of children. Curley and Schultz both testified for
the Commonwealth.
C. Disciplinary Proceedings
On November 24, 2014, the ODC initiated disciplinary proceedings by filing a
Petition for Discipline against Respondent, charging her with violations of Rules 1.1,
1.6(a), 1.7(a) and 8.4(d) of our Rules of Professional Conduct. The Hearing Committee
conducted an evidentiary hearing and produced a thorough report that reviewed the
evidence and made findings of fact and recommendations. The Hearing Committee
determined that Respondent represented Curley, Schultz and Spanier in a personal
capacity during their grand jury testimony. Hearing Committee Report at 39-42. The
Hearing Committee, however, determined that Respondent did not violate Rule 1.7(a), as
she had conducted a reasonable investigation into the interests of Penn State and the
Individual Clients with respect to the grand jury investigation and had, based upon that
investigation, reasonably concluded that the interests of Penn State and the individuals
were consistent. Id. at 42-44. The Hearing Committee further concluded that
Respondent did not violate Rule 1.1, as she had provided competent representation of
Curley, Schultz and Spanier. Id. at 44-45. Further, Respondent did not violate RPC
1.6(a), as her testimony before the grand jury fell within exceptions to that rule and did
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not improperly reveal protected information about her representation of the individuals.
Id. at 44-64. Because Respondent had not engaged in misconduct, the Hearing
Committee determined that her actions were not prejudicial to the administration of
justice, and therefore Respondent had not violated Rule 8.4(d). Id. at 65.
Both parties filed exceptions to the Hearing Committee's report. Respondent took
issue with the Hearing Committee’s determination that she represented Curley, Schultz
and Spanier in their individual capacities, while the ODC filed exceptions to its rulings
related to violations of Rules 1.1, 1.6(a), 1.7(a) and 8.4(d). On March 18, 2019, the
Disciplinary Board issued a report reversing the determinations of the Hearing
Committee. The Disciplinary Board agreed with the Hearing Committee that Respondent
had represented the three administrators in their personal capacities before the grand
jury but concluded that she failed to recognize the multiple conflicts of interest between
her clients. Disciplinary Board Report at 28-30, 33-37. The Board further determined
that Respondent did not exercise the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representations of Curley, Schultz and Spanier
before the grand jury. Id. at 30-33. She further failed to maintain the confidentiality of
communications between herself and her clients. Id. at 37-42. Finally, the Disciplinary
Board found that Respondent's conduct prejudiced the administration of justice. Id. at 42-
43. The Disciplinary Board found that Respondent poses no danger to the public or the
profession and that her character remains of the highest quality. The Disciplinary Board
concluded that public censure, rather than a public reprimand, is the appropriate remedy
in this case. Id. at 48.
Respondent poses two questions for this Court’s consideration:
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1. Did the [ODC] establish by clear and convincing evidence that
[Respondent] committed disciplinary violations of Rules 1.1,
1.6, 1.7 or 8.4 of the Rules of Professional Conduct?
2. Was there any legitimate basis to impose any form of
discipline upon [Respondent] in the absence of any
aggravating factors, multiple mitigating factors and no prior
disciplinary history?
Respondent’s Brief at 2.
III. Analysis
A. Respondent was Personal Counsel to Curley, Schultz and Spanier
We first consider the ODC’s contentions that Respondent violated Rules 1.1 and
1.7, which provide as follows:
Rule 1.1. Competence
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
Rule 1.7. Conflict of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client
if the representation involves a concurrent conflict of interest. A concurrent
conflict of interest exists if:
(1) the representation of one client will be directly adverse to
another client; or
(2) there is a significant risk that the representation of one or
more clients will be materially limited by the lawyer's
responsibilities to another client, a former client or a third
person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under
paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able
to provide competent and diligent representation to each
affected client;
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(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a
claim by one client against another client represented by the
lawyer in the same litigation or other proceeding before a
tribunal; and
(4) each affected client gives informed consent.
Pa.R.P.C. 1.1, 1.7. To evaluate these claims by the ODC, we must first decide the nature
of the representation that existed between Respondent and Curley, Schultz and Spanier
during the time period immediately before and during their grand jury testimony. Curley,
Schultz and Spanier insist that Respondent represented them in their individual capacities
without limitation. Respondent, in contrast, posits that she represented them only in a
representative capacity in their roles as employees and representatives of Penn State.
We begin with Respondent’s testimony at the evidentiary hearing before the
Hearing Committee, where she offered the following testimony regarding the events
leading to her decision to accompany Curley and Schultz at the grand jury for their
interviews and testimony:
A. I – I did explain that Tim could have a personal attorney go to
go with him to the grand jury, ... and Graham said, "Well,
Cynthia, you go with him, you can go with him, you go with
him." And I said, "well, yes, but I can't be his personal attorney
because I'm general counsel," and I said - - and I said to him,
I said, "You know, Tim, that if I go with you, nothing that you
say would be confidential," that – and – and I know that the
testimony has been I said I have to tell the board of trustees,
but I said, "Just like we're talking here to Graham, Graham
could know, the board of trustees could know," and I said to
him, you, "If you want a personal attorney, you know, just call
someone." He said, "I don't know any lawyers." After that
discussion, then he went downstairs to my office.
Q. Did Mr. Curley understand the instructions you gave him,
based on your understanding?
[J-63-2019] - 18
A. Oh, yes.
* * *
Q. Okay. Did Mr. Curley ask you to be his personal counsel?
A. No.
* * *
Q. Did at some point in time you speak to Mr. Schultz -
A. I did.
Q. – about your representation of him?
A. When he came back from vacation.
Q. And what did you discuss with Mr. Schultz?
A. I discussed the same thing with him. I went through what we
in the office called the corporate Miranda, and that is, I told
him that I could go in with him, he could get personal counsel,
I could go in with him, but he knew that I was general counsel
of Penn State, that nothing he told me would be confidential
as to my client, Penn State, and that I needed to know what
he was going to tell me to determine whether there was any
conflict with the client. Gary told me the same thing that Tim
told me.
Q. Did Mr. Schultz ask you to represent him in any type of
personal capacity?
A. No.
Q. Did Mr. Curley or Mr. Schultz raise any concern about
complying or cooperating with the investigation?
A. None.
Q. Now, a lot has been made about these Upjohn10 warnings.
Do you know what the Upjohn warnings are?
10 Upjohn Co. v. U.S., 449 U.S. 383 (1981)
[J-63-2019] - 19
A. Yes.
Q. Do you believe you gave them?
A. Yes.
Q. Was your inquiry about whether a conflict existed between
these individuals and the university satisfied?
A. Yes.
Q. Can you explain to the Panel?
A. Well, the fact is, is that there was no way that I was going in if
there was a conflict between Penn State and what they were
telling me. They both said that [what they had been told back
in 2001 about Sandusky's contact with a youth] was
horseplay, that it was wrestling around, and that's what they
knew. Okay? And there was – that, therefore, no conflict with
the university, and so, that was the reason that I – I went in
with them, and – and they were – because it was explained to
me that this was about the Sandusky investigation, and Penn
State had an obligation to cooperate, I mean, there was no
way that the university wasn't going to cooperate with this, and
that – and they were executives of the university, so –
N.T., 5/23/2018, at 371-379.
Immediately prior to Curley’s and Schultz's testimony before the grand jury, the
grand jury supervising judge asked Respondent who she represented. She responded
as follows:
OAG: Judge, we're here on Notice 29. We have some
witnesses to be sworn, Mr. Curley and Mr. Schultz.
Judge: Represented by?
Respondent: My name is Cynthia Baldwin, general counsel for
Pennsylvania State University.
Judge: Will you be providing representation for both of those
identified witnesses?
[J-63-2019] - 20
Respondent: [Schultz] is retired but was employed by the university
and [Curley] is still an employee.
N.T. (grand jury), 1/12/2011, at 7–8. In this exchange, Respondent did not plainly indicate
either that she viewed herself as representing these administrators solely in an agency
capacity or that she represented them in their personal individual capacities. The
supervising grand jury judge, in the presence of Respondent, then advised Curley and
Schultz of their rights as grand jury witnesses.
As witnesses before the Grand Jury, you're entitled to certain
rights and subject to certain duties which I am now going to
explain to you. All of these rights and duties are equally
important and it's important that you fully understand each of
them.
First, you have the right to the advice and assistance of a
lawyer. This means you have the right to the services of a
lawyer with whom you may consult concerning all matters
pertaining to your appearance before the Grand Jury.
You may confer with your lawyer at any time before, during
and after your testimony. You may consult with your lawyer
throughout your entire contact with the Grand Jury. Your
lawyer may be present with you in the Grand Jury room during
the time you're actually testifying and you may confer with her
at that time.
You also may at any time discuss your testimony with your
lawyer and except for cause shown before this Court, you may
disclose your testimony to whomever you choose, if you
choose.
You also have the right to refuse to answer any question
pending a ruling by the Court directing you to respond if you
honestly believe there are proper legal grounds for your
refusal. In particular, you have the right to refuse to answer
any question which you honestly believe may tend to
incriminate you.
Should you refuse to answer any question, you may offer a
reason for your refusal, but you're not obliged to do so. If you
answer some questions or begin to answer any particular
[J-63-2019] - 21
question, that does not necessarily mean you must continue
to answer your questions or even complete the answers you
have started.
Now, any answers you give to any question can and may be
used against you either for the purpose of a Grand Jury
Presentment, Grand Jury Report or a Criminal Information.
In other words, if you're uncertain as to whether you may
lawfully refuse to answer any question or if any other problem
arises during the course of your appearance before the Grand
Jury, you may stop the questioning and appear before me,
either alone or in this case with your counsel, and I will rule on
that matter whatever it may be.
Id. at 8–10. Spanier later received the same instructions.
Immediately thereafter, at the outset of Curley’s grand jury testimony, the following
exchange occurred between Curley and counsel for the OAG:
Q. You have counsel with you?
A. Yes I do.
Q. Would you introduce her, please?
A. My counsel is Cynthia Baldwin.
N.T. (grand jury), 1/12/2011 (Curley testifying), at 3. Respondent did not object to this
statement or offer any clarification regarding the nature of her representation of Curley,
including in particular no statements indicating, or even suggesting, that she represented
Curley only in a representative capacity in his role as the athletic director of Penn State.
Likewise, Schultz’s testimony began with the following question and answer:
Q. You are accompanied today by counsel, Cynthia Baldwin; is that correct?
A. That is correct.
N.T. (grand jury), 1/12/2011 (Schultz testifying), at 3. Again, Respondent offered no
response or disagreement with this testimony and offered no indication that she
[J-63-2019] - 22
represented Schultz only in his capacity as an administrator and representative of Penn
State.
In April 2011, the outset of Spanier’s grand jury testimony began as follows:
Q. Sir, could you give us your name for the record, please?
A. Graham Spanier.
Q. Sir, you're represented by counsel today?
A. Yes.
Q. Could you just identify counsel?
A. Cynthia Baldwin sitting behind me.
N.T. (grand jury), 4/13/2011 (Spanier testifying), at 3. As with Curley’s and Schultz’s
similar testimony, Respondent did not object or otherwise respond in an effort to advise
the grand jury that she represented Spanier in an agency capacity as a result of his
position as the current president of Penn State.
Based upon the entirety of the evidence of record, we agree with the conclusions
of both the Hearing Committee and the Disciplinary Board that Respondent represented
Curley, Schultz and Spanier in their personal capacities at the time of their grand jury
testimony. The Hearing Committee found as follows:
Respondent very clearly sought to ensure that there was no
conflict between their interests and the interests of [Penn
State]. She said that she could not go in with them to the
Grand Jury proceedings unless she was sure that there was
no conflict between them and [Penn State]. Her Upjohn or
Miranda warnings, as they were referred to, expressly
provided that she can concurrently represent employees of
[Penn State] while representing [Penn State] if their interests
align. Indeed, [Amy McCall], [Penn State’s] former associate
general counsel, confirmed that the Upjohn warnings were
given and the conflict examination made in order to determine
if they could also represent the individual employees in
[J-63-2019] - 23
matters in which they were representing [Penn State], and if
this could not be done, then the employees were advised to
get their own counsel. She acknowledged that it was common
practice for the [Penn State] office of general counsel to
provide joint representation to university employees when
their interests were aligned.
Respondent clearly determined on the basis of what these
individuals told her that their interests were aligned with [Penn
State’s] such that she could represent them. Based upon this
conclusion, she told them that she could accompany them to
their Grand Jury testimony. While she clearly advised them
that they could engage separate counsel, she never told them
they needed separate counsel because she could not
represent them or that if they did not get separate counsel
they would be unrepresented.
We do not find that her admonitions to at least Mssrs. Curley,
Schultz and Spanier that their conversations with her were not
privileged from disclosure to [Penn State] in any way
undermines the conclusion that she represented the individual
employees. It is merely the appropriate advice to give one of
multiple clients: Where an attorney represents multiple clients
in the same matter, it is in fact imperative that they be advised
whether their communications with her are privileged from
each other or shared jointly. She never told them that their
conversations with her were not privileged from disclosure to
third parties because she did not represent them; nor did she
tell them that [Penn State] was free to authorize the disclosure
of her conversations with them to third parties because she
did not represent them individually. Instead, all of her
statements in this regard were wholly consistent with her
representing them jointly with [Penn State].
Hearing Committee Report at 39-40 (emphasis in original).
In its report, the Disciplinary Board added the following relevant findings:
Mr. Curley, Mr. Schultz and Dr. Spanier were subpoenaed in
their personal capacities. They were aware that Respondent
was Penn State's General Counsel. Respondent informed
each of them that they could have other counsel if they so
desired and that she could not represent them if their stories
were not consistent and not aligned with Penn State's
interests. After hearing their stories, Respondent agreed she
could accompany them to the grand Jury. Respondent never
[J-63-2019] - 24
advised them that she solely represented them in their
capacities as agents of Penn State, nor did she advise them
that she did not represent them in their personal capacities.
There is no writing memorializing discussions regarding the
nature of the representation and inherent conflicts and no
writing indicating the individuals gave informed consent.
At the grand jury, each Individual separately identified
Respondent on the record as their counsel. They did not
identify Respondent as Penn State's counsel nor did they
indicate that her representation of them was limited to their
status as employees of Penn State. Respondent did not
contradict or limit their declarations. … She allowed them to
testify under oath that she was their counsel without limitation,
and she did not correct these statements. The evidence
supports the conclusion that Respondent agreed to represent
Mr. Curley, Mr. Schultz, and Dr. Spanier as their personal
attorney (and) that they understood this to be the agreement.
It follows that Respondent did not understand the nature of
her representation of Mr. Curley, Mr. Schultz and Dr. Spanier,
as she maintains that her representation of the individuals
was solely in their capacities as agents of Penn State. In the
face of the indicia of her representation of the individuals in a
personal capacity, we find no evidence that Respondent at
any time stated to any of them, that she solely represented
them in their capacities as agents of Penn State. Any
intention on Respondent's part to limit her representation of
Mr. Curley, Mr. Schultz and Dr. Spanier to one only in their
capacity as agents of Penn State was ineffective, because
Respondent never told them she was so limiting her
representation, and Mr. Curley, Mr. Schultz and Dr. Spanier
had no basis upon which to conclude that she was doing so.
Disciplinary Board Report at 29-30.
As indicated, the present record of disciplinary proceedings fully supports these
findings. In further support of our determination that Respondent represented Curley,
Schultz and Spanier in their individual capacities is the guarantee under Pennsylvania
law that witnesses offering testimony before a grand jury are entitled to the presence of
their counsel. As far back as In re Groban’s Petition, 352 U.S. 330 (1957), the United
[J-63-2019] - 25
States Supreme Court recognized that a witness testifying before a grand jury remains
protected by the privilege against self-incrimination. Id. at 333. Further, in
Commonwealth v. McCloskey, 277 A.2d 764 (Pa. 1971), this Court held that a grand jury
witness must be advised/warned that he is entitled to come before the court accompanied
by counsel and obtain a ruling as to whether he should answer a question that may
incriminate him.
Such a warning gives full recognition to the delicate position
of a witness before an investigating grand jury. He has been
summoned to testify, and he is subject to contempt
proceedings should he refuse to testify without justification.
The question of when a witness has ‘reasonable cause to
apprehend danger’ and hence can exercise his right against
self-incrimination is not always clear. As was stated in Jones
v. United States, 342 F.2d 863 (D.C. 1964).
If … [a witness] answers incriminating questions
he may make it certain … that he will be
indicted. And testimony before the grand jury
may be used … to impeach his testimony at trial.
If he refuses to testify at all, or to answer some
questions on the ground that answers might
incriminate him, the grand jury may draw
conclusions. If he refuses to answer questions
that are not incriminating, he may be guilty of
contempt.
Id. at 868. Determining what is an incriminating statement is
not always clear to a layman. We thus conclude that a
subpoenaed witness who has given testimony before an
investigating grand jury without the above warning has been
denied his right against self-incrimination.
Id. at 777; see also id. at 780 (“‘A potential defendant who is brought before the grand
jury without an attorney at his side is almost helpless.”) (Eagan, J. concurring and
dissenting). As recited, Curley, Schultz and Spanier received the warning in
Respondent’s presence. It is impossible to conclude in light of the seriousness and
[J-63-2019] - 26
solemnity of the warnings administered by the supervising judge that the Individual Clients
believed anything other than their personal interests were being protected by
Respondent. Likewise, knowing she was the only attorney present with the Individual
Clients when the warnings were administered, it cannot be fathomed that Respondent did
not understand that she was representing them personally.
In 1978, this Court adopted what is now Rule 231 of the Pennsylvania Rules of
Criminal Procedure. It provides in relevant part as follows:
Rule 231. Who May Be Present During Session of an Investigating
Grand Jury
(A) The attorney for the Commonwealth, the alternate
grand jurors, the witness under examination, and a
stenographer may be present while the investigating
grand jury is in session. Counsel for the witness under
examination may be presented as provided by law.
(B) The supervising judge, upon the request of the attorney
for the Commonwealth or the grand jury, may order that
an interpreter, security officers, and such other persons
as the judge may determine are necessary to the
presentation of the evidence may be present while the
investigating grand jury is in session.
Pa.R.Crim.P. 231(A)-(B). In 1980, our General Assembly included section 4549(c) as
part of its enactment of the Investigating Grand Jury Act, 42 Pa.C.S. §§ 4541-4553.
§ 4549. Investigating grand jury proceedings
* * *
(c) Counsel for witnesses.--
(1) A witness subpoenaed to appear and testify before
an investigating grand jury or to produce documents,
records or other evidence before an investigating
grand jury shall be entitled to the assistance of counsel,
including assistance during such time as the witness is
questioned in the presence of the investigating grand
[J-63-2019] - 27
jury. In the event counsel of the witness' choice is not
available, he shall be required to obtain other counsel
within a reasonable time in order that the work of the
grand jury may proceed.
* * *
(3) Such counsel shall be allowed to be present in the
grand jury room during the questioning of the witness
and shall be allowed to advise the witness but shall
make no objections or arguments or otherwise address
the grand jury or the attorney for the Commonwealth.
42 Pa.C.S. § 4549(c)(1), (3).
Two observations are in order. First, pursuant to Rule 231(A) and subsection
4549(c)(1), Respondent would not have been permitted to accompany Curley, Schultz
and Spanier into the grand jury proceedings unless she was their personal counsel. In
addition to the grand jurors themselves, Rule 231(A) strictly limits entry to the attorney for
the Commonwealth, the alternate grand jurors, a stenographer the witness under
examination, and counsel for the witness. Curley, Schultz and Spanier were each
compelled to testify pursuant to a subpoena directed to them individually (not in their
corporate capacities as a representative of Penn State), and thus pursuant to section
4549(c)(1) they were each entitled to personal counsel. As such, if Respondent was not
their personal counsel, but rather solely counsel for Penn State as she now contends,
pursuant to Rule 231(B) she could have gained entry into the grand jury room only by
order of the supervising judge. Pa.R.Crim.P. 231(B). The notes of testimony, however,
do not reflect that any request was made, either by counsel for the Commonwealth or the
grand jury, for permission to permit Respondent’s presence in the room. All in attendance
must have understood that Respondent represented these witnesses in their personal
capacities.
[J-63-2019] - 28
Second, as now provided by rule and statute, a witness’s right to representation
before the grand jury is a personal right belonging to the witness. As is clear from the
above-quoted subsections of 4549(c) of the Investigating Grand Jury Act, counsel is
permitted to accompany the witness to provide advice and assistance, and as this Court
made clear in, inter alia, McCloskey, 277 A.2d at 777, this advice and assistance extends
primarily to provide invaluable counsel regarding responses to questions implicating the
right against self-incrimination. If it were true, as Respondent now contends, that her
representation of the three individuals in question here was limited to their roles as
administrators of Penn State, then she had no professional obligation during their grand
jury testimonies to protect their personal interests, including no duty to assist them with
timely advice regarding their proper invocations of objections based upon their rights
against self-incrimination. For purposes of Rule 231 and section 4549(c), such
representation would be the equivalent to no representation at all.11 As previously set
11 For these reasons, we decline Respondent’s invitation to apply the test for a corporate
officer to assert a personal claim of attorney-client privilege in connection with
communications with corporate counsel, as first announced in In the Matter of Bevill,
Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120, 123 (3d Cir. 1986); see also
Maleski by Chronister v. Corporate Life Ins. Co., 641 A.2d 1, 4 (Pa. Commw. 1994), and
United States v. Norris, 722 F.Supp.2d 632, 637 (E.D. Pa. 2010). Pursuant to the Bevill
test, to assert attorney-client privilege, the corporate official must demonstrate as follows:
First, they must show they approached counsel for the
purpose of seeking legal advice. Second, they must
demonstrate that when they approached counsel they made
it clear that they were seeking legal advice in their individual
rather than in their representative capacities. Third, they must
demonstrate that the counsel saw fit to communicate with
them in their individual capacities, knowing that a possible
conflict could arise. Fourth, they must prove that their
conversations with counsel were confidential. And, fifth, they
must show that the substance of their conversations with
[J-63-2019] - 29
forth, at the outset of their testimonies, the supervising judge informed the three witnesses
in detail regarding their rights to the advice and assistance of their lawyer and the ability
to consult with their lawyer at any time throughout their testimonies. Were we to conclude
that Respondent did not represent Curley, Schultz and Spanier in their personal
capacities, as Respondent argues, it would amount to a determination that these three
witnesses effectively waived their rights to counsel before the grand jury. The record
contains no indication that any such waivers occurred. Instead, the record unequivocally
establishes that the Individual Clients reasonably believed that Respondent was
representing them personally and individually.12
(…continued)
counsel did not concern matters within the company or the
general affairs of the company.
Bevill, 805 F.2d at 125. In Bevill, the Third Circuit held that while “former officers and
directors of a corporation may not claim privilege for communications made by them in
their corporate capacities, they nonetheless may hold a privilege as to communications
made by them in their individual capacities.” Maleski, 641 A.2d at 4.
This Court has not adopted the Bevill test and will not do so here, as we do not consider
it suitable or appropriate under the circumstances presented, namely where the corporate
officer meets with corporate counsel for the purpose of securing representation before an
investigating grand jury relating to criminal matters in which he could be implicated and
the record belies any conclusion other than Respondent was acting as personal counsel.
As discussed hereinabove, the subpoenas served on Curley, Schultz and Spanier were
not served on them in their capacities as Penn State administrators but rather on them
personally. The record of the grand jury proceedings prior to the Individual Clients’
testimony makes clear that Respondent represented them in their individual capacities.
Moreover, as explained, Pa.R.Crim.P. 231(A) and subsection 4549(c)(1) of the
Investigating Grand Jury Act operate to provide an individual appearing before a grand
jury to be represented by personal counsel and Respondent could not be in the grand
jury room unless she was personal counsel.
12 Respondent continues to argue aggressively that she represented Curley, Schultz and
Spanier in their capacity as employees of Penn State and that Penn State was her only
client. She insists that her administration of Upjohn warnings divorced her from any claim
that she represented these current/former Penn State administrators in a personal
capacity. We find it unnecessary to engage in an extended analysis of the United States
[J-63-2019] - 30
B. Competency and Conflicts of Interest
Pa.R.P.C. 1.1
Pa.R.P.C. 1.1 requires counsel to render competent representation to clients. The
Disciplinary Board, based upon its review of the evidentiary record, determined that
Respondent “violated this rule, as she failed to exercise the legal knowledge, skill,
thoroughness and preparation reasonably necessary for the representation of her clients
before the grand jury, and further failed to properly advise and advocate on their behalf,
to their detriment.” Disciplinary Board Report at 30. For the reasons set forth herein, we
agree with this conclusion.
By her own admission, Respondent had no criminal law experience and had never
represented a client before a grand jury. N.T., 5/23/2018, at 430-31. She also did not
testify that she consulted with counsel experienced in these areas in preparation for the
grand jury testimony of Curley and Schultz or in responding to the subpoena duces tecum.
(…continued)
Supreme Court seminal decision in Upjohn Co. v. U.S., 449 U.S. 383 (1981) or its progeny
in the context of this case. Upjohn warnings are classically given when a corporation is
conducting an internal investigation. Upjohn provided a framework to identify when
employee communications with corporate counsel qualified as protected attorney-client
communications with the corporation holding and controlling the privilege. Upjohn held,
in part, that the privilege applies when the communications concerned matters in the
scope of the employee’s duties “and the employee themselves were sufficiently
aware that they were being questioned in order that the corporation could obtain
legal advice. Id. at 394 (emphasis added).
This was not an internal investigation. Curley, Schultz and Spanier were under subpoena
by an investigating grand jury and required advice and representation for that reason.
Even if proper Upjohn warnings were administered, we find it difficult to imagine how
Respondent could have interviewed Curley, Schultz and Spanier in this obviously
potentially criminal matter unless they had their own counsel present, let alone agree to
“go in with them” when they testified before the Grand Jury. Only a gross
misunderstanding of both Upjohn warnings and grand jury proceedings could explain the
persistent claim by Respondent that she only represented Penn State.
[J-63-2019] - 31
Id. at 434. To the contrary, the record plainly reflects that Respondent did not exhibit any
understanding of the magnitude of the challenge that she was facing. Respondent should
have understood that by subpoenaing Curley and Schultz, the grand jury investigation
was expanding beyond the conduct of Sandusky into the possible roles that individuals
associated with Penn State may have had in facilitating or covering up his criminal acts,
including in particular those that occurred on the Penn State campus. Their testimony
potentially exposed Curley and Schultz (and later Spanier) to significant criminal liability,
including prosecution for perjury, obstruction of justice, endangering the welfare of
children, failure to report child abuse, and conspiracy. As representatives of Penn State,
their testimony also potentially exposed the university to criminal liability as well as
massive civil liability.
Despite the enormity of the situation confronting her, Respondent did very little in
advance of her clients’ appearances before the grand jury. She met separately with
Curley and Schultz on one occasion each, at which time she provided a general review
of the grand jury process, advised them of their right to counsel of their choosing, and told
them to tell the truth. Nothing in the record, however, indicates that she spent any time
with either Curley or Schultz reviewing the types of questions that they were likely to be
asked by the grand jury or how best to respond to any such questions. Likewise, the
record does not reflect that Respondent advised them of their rights to assert their rights
against self-incrimination, or otherwise describe to them the nature and types of crimes
to which they might be subjecting themselves if they did not assert this right. Instead, the
substance of Respondent’s self-described preparation of Curley and Schultz before their
grand jury testimony was, in its totality, to “tell the truth.” Despite having three additional
[J-63-2019] - 32
months to prepare Spanier for his grand jury testimony, the record does not reflect that
she did anything more in this regard than she had done for Curley and Schultz.
Respondent asserts that she did not prepare more diligently in advance of the
grand jury appearances because Curley and Schultz lied to her, misrepresenting that they
were free of all wrongdoing. Concurrent with the representations of Curley and Schultz,
Respondent was representing Penn State with regard to its response to the subpoena
duces tecum. While it is questionable whether an attorney can ever blindly rely on
statements by a client regarding events that occurred years prior to anticipated testimony,
it was below any reasonable standard of care to do so here where another client may
have been in possession of relevant documents. The duty to investigate becomes all the
more important when, as here, counsel undertakes the representation of multiple clients,
one of which is a sophisticated institutional client with massive document retention
capabilities.
Despite the urgent need, the record here reflects that Respondent conducted
little13 or no independent investigation prior to accompanying Curley and Schultz into the
grand jury room. She did not, for instance, interview any members of their staff to inquire
regarding their knowledge of prior Sandusky investigations. She also did not have
anyone search their offices for relevant documents. As of November 2011, eleven
months after Schultz’s grand jury testimony (in which he indicated that prior to his
retirement he had kept notes regarding Sandusky matters, but thought they had “probably
been destroyed’), a file containing said notes (with incriminating details regarding the
13 Respondent contacted former Penn State counsel, Wendell Courtney, and made a
brief inquiry into his knowledge of prior investigations of Sandusky.
[J-63-2019] - 33
1998 and 2001 incidents) remained in his prior office. This file was later obtained by the
OAG.
Most importantly, prior to producing the Individual Clients for testimony before the
grand jury, Respondent failed entirely to coordinate a search of any of the electronically
stored data, including emails, on Penn State’s computers. As a result of her multiple
representations, Respondent had both an obligation to advise Curley, Schultz and
Spanier and an obligation to comply with the subpoena duces tecum served on Penn
State in January 2011. According to the grand jury, Penn State “had in place a well-
defined historical practice and procedure for responding to subpoenas,” and that
“[s]ubpoenas that might encompass electronically stored data (such as emails and
documents stored on a computer or network drive) would routinely be sent to the
specialized unit called the “SOS.” Grand Jury Presentment at 23. The SOS included
“information technology professionals [who were] trained and dedicated to assembling
responsive electronically stored data in response to litigation needs or other legal
process.” Id. Remarkably, however, the grand jury determined that this “well-defined
historical practice and procedure” was not implemented by Respondent:
None of the SOS professionals were ever shown subpoena
1179 before the arrests of Sandusky, Schultz and Curley [in
November 2011]. Likewise, investigators contacted the
information technology employees of Penn State, who were
not members of the SOS unit but had access to the
electronically stored data likely to be searched to fulfill the
requirements of subpoena 1179. These information
technology employees likewise stated that they were never
requested to fulfill any requests for Sandusky related
information.
Id. at 32.
[J-63-2019] - 34
During her grand jury testimony, Respondent insisted that she did involve Penn
State’s information technology professionals in her efforts to comply with the subpoena
duces tecum.
Q. Now, the subpoena duces tecum, Subpoena 1179, can you
go through with the grand jury the efforts you made to enforce
the subpoena and comply with it and what happened?
A. Right. What we do is to send out a notice to everybody who
is affected by that to say that you have to – you have to
preserve everything and because we’re going to have to turn
over all of this information and so I did tell Tim Curley, Gary
Schultz, [and] Graham Spanier that they would have to do that
and turn over all of the information over.
Now, we have, of course, IT people, and we have other people
who will help to get that information but that is what I told
everybody, to try to get all of that information in and turn it over
to the Office of Attorney General.
N.T. (grand jury), 10/26/2012 (Respondent testifying), at 16. In an interview with the
Freeh group in February 2012, however, Respondent stated that “she did not investigate
the Sandusky matter or look for Schultz, Paterno or Curley emails in the [Penn State]
system that might relate to the Grand Jury’s investigation.” Freeh Report at 83 (citing
interview with Respondent on February 29, 2012).
The significance of Respondent’s failure to conduct a proper investigation prior to
agreeing to represent Curley, Schultz and Spanier before the grand jury became
abundantly clear when in November 2011 the Penn State Board of Directors intervened
and ordered university personnel, including in particular its information technology
professionals, to work directly with the OAG’s office to obtain the emails and other
documents sought by the subpoena duces tecum served back in January 2011.
On November 8, 2011, the Board of Trustees of Penn State
terminated Graham Spanier as the President of the
[J-63-2019] - 35
University. The Board of Trustees also directed that
University personnel were to cooperate with the law
enforcement investigation of Jerry Sandusky and Penn State.
Almost immediately following those two events, actual
compliance with the Grand Jury subpoena (past and present)
and cooperation with the investigation began to be realized.
Law enforcement investigators, working in conjunction with
[the] Penn State IT staff, were able to process massive
amounts of electronically stored data and began a lengthy
process of review and analysis. For the first four months of
2012, large amounts of evidence – much of which had been
sought and subpoenaed more than a year prior – was
uncovered and provided to investigators. This evidence
included significant emails from 1998 reflecting knowledge of,
and involvement with, the investigation of Sandusky with two
young boys in May of 1998. In addition, significant emails
were discovered, reflecting direct evidence of involvement by
Graham Spanier, Gary Schultz, and Tim Curley in the failure
of Penn State to report to child welfare or law enforcement
authorities the crimes reported by Michael McQueary in
February of 2001.
Grand Jury Presentment at 32.
As such, it is clear that information critical to Respondent’s decision to represent
simultaneously not only Penn State but also the three administrators was at all times
contained within the university’s computer servers and available for extraction upon
request. Respondent did not conduct this investigation before agreeing to concurrently
represent Penn State while personally representing Curley and Schultz (and later
Spanier) in connection with their grand jury testimony. While we note that the subpoenas
directed to Curley and Schultz provided only nine days between their service (on January
3, 2011) and the scheduled day for testimony (on January 12, 2011), an insufficient
amount of time to conduct an investigation, it is also true that Respondent made no
attempt to seek a delay. Respondent could have, but did not, request a continuance of
their testimony from OAG counsel or file a motion for the same with the supervising judge.
[J-63-2019] - 36
N.T., 5/23/2018, at 436. In the absence of adequate time to investigate and garner any
documents in the possession of Penn State regarding the Sandusky matters that were
generated, received or reviewed by Curley, Schultz and Spanier, Respondent could not
conclude that the concurrent representation would be possible due to inadequate
information upon which to make a conflict of interest analysis. Moreover, it was imperative
for personal counsel for Curley, Schultz and Spanier to fully investigate the available
evidence in order to give competent advice on invoking the privilege against self-
incrimination in testimony before the grand jury. For these reasons, we conclude that
Respondent failed to provide competent representation to clients in view of Rule 1.1.
Pa.R.P.C. 1.7
By agreeing to undertake the concurrent representation of Penn State, Curley,
Schultz and Spanier, Respondent committed multiple violations of Pa.R.P.C. 1.7. Rule
1.7 requires attorneys to avoid conflicts of interest in the representation of multiple clients.
A conflict of interest exists under Rule 1.7(a)(1) when the representation of one client is
materially adverse to the interests of another client or where there is a “significant risk”
that the representation of one client will be materially limited by the lawyer’s
responsibilities to another client as proscribed by Pa.R.P.C. 1.7(a)(2). A client may waive
a conflict of interest, but only upon providing informed consent. Pa.R.P.C. 1.7(a)(2). In
the present circumstance, the Disciplinary Board properly concluded that Respondent’s
concurrent representation of Penn State and Curley, Schultz and Spanier “undoubtedly
created a significant risk that her ability to consider, recommend or carry out an
appropriate course of action for each client could be materially limited by her
[J-63-2019] - 37
representation of Penn State.” Disciplinary Board Report at 34. According to the
Disciplinary Board,
Respondent understood that the grand jury was investigating
Sandusky regarding alleged child abuse, and that Mr. Curley,
Mr. Schultz and later Dr. Spanier would be questioned about
what they knew. It is difficult to believe that Respondent, a
seasoned attorney, did not perceive the danger in her
representation of all of these clients.
Id.
We agree with these observations of the Disciplinary Board. As noted,
Respondent now claims that she did not know of any potential conflicts because Curley,
Schultz and Spanier lied to her. Even to the extent that this is true, it does not account
for the “significant risks” of substantial conflicts of interest with her representation of Penn
State. As indicated, at the time that the grand jury served testimonial subpoenas on
Curley, Schultz and Spanier, it also served Penn State with a subpoena for documents
related to Sandusky matters. Its investigation had expanded beyond the criminal conduct
of Sandusky into new territory, namely an investigation of the possible criminal conduct
of Penn State and its highly ranking representatives. Under Rule 1.7, Respondent could
not represent both Penn State and members of its senior leadership without full disclosure
of all possible conflicts in order to obtain informed consent, and Penn State documents,
especially the trove of emails stored on its computer servers, were the tangible source of
information regarding potential conflicts among the four clients. Reliance on painfully
cursory interviews with senior leadership to conclude the absence of a conflict was a
disservice to Penn State.14 Proper conflicts analysis required intensive investigation of
14 David Rudovsky, ODC’s expert in the proceedings before the Hearing Committee,
opined that “there is no legal basis to argue that in a situation of multiple representation,
[J-63-2019] - 38
the actions of said senior leadership. Respondent knew, or clearly should have known,
that any wrongdoing by officers of the university would expose Penn State to criminal
and/or civil liability. It was obviously in Penn State’s interest to avoid these pitfalls and
thus, if necessary, to disassociate itself from these individuals. With knowledge of actual
wrongdoing by its representatives, as evidenced by available records, Penn State could
have avoided the pitfalls of the joint representation.15
Respondent also failed to recognize the likelihood of conflicts of interests between
Curley, Schultz and Spanier. Respondent reasonably should have recognized the
substantial risk that the representation of one of the Individual Clients could be materially
limited by the responsibilities to each of the other Individual Clients. Spanier, by virtue of
his position as President of the University, faced potential criminal liability and was entitled
to personal counsel who would seek to isolate him from first level decisions. Schultz and
Curley likewise were entitled to personal counsel who would develop a defense
unconstrained by consideration of the other’s defense given their varying levels of
decision making. In Pirillo v. Takiff, 341 A.2d 896 (Pa. 1975), this Court upheld a decision
by the supervising judge of a grand jury to disqualify an attorney and his associate from
(…continued)
counsel should simply assume that what the clients state as to their possible criminal
conduct should be taken at face value in assessing a possible conflict of interest or other
reason to consider the appropriateness of joint representation.” Response to Expert
Report of Nicholas Cafardi, Esquire, 5/14/2018, at 5. In his expert report, Respondent’s
expert, Nicholas Cafardi, did not disagree that clients frequently withhold information
related to possible criminal charges against them, arguing instead that “no lawyer could
have been prepared to deal with the level of conspiracy among Spanier, Schultz, and
Curley to conceal the truth… .” Expert Report of Nicholas P. Cafardi at ¶ 34.
15 The record does not reflect how Penn State agreed to Respondent’s concurrent
representation with Schultz, Curley or Spanier, or if Respondent considered Penn State’s
informed consent to be necessary.
[J-63-2019] - 39
representing twelve witnesses subpoenaed to appear before the grand jury. In support
of the ruling, the Court stated that
[t]he multiple representation interfered with the individual
witness’s right to effective counsel. For example, if witness A
has information about witness B’s criminal conduct, one
attorney could not represent both. It may be in A’s best
interest for counsel to advise A to cooperate. However, this
could operate to the detriment of B.
Id. at 899; see also In re Philadelphia Investigating Grand Jury XII, 605 A.2d 318, 320
(Pa. 1992) (holding that the representation of multiple grand jury witnesses is
inappropriate where each witness was a potential defendant and the testimony of each
witness might incriminate one or more of the other witnesses).
Discrepancies between the testimonies of Curley, Schultz and Spanier
materialized before any of the three testified before the grand jury, evidencing actual
conflicts of interest. As noted herein, prior to the grand jury testimony of Curley and
Schultz on January 12, 2011, both witnesses were interviewed, accompanied by
Respondent, by an OAG investigator. The notes of these interviews reveal important
differences in their recollection of events and, critically, they reveal a divergence from
what Respondent reported that these individuals told her when she met with them to
determine whether she had a conflict of interest in representing them along with Penn
State.
Curley’s interview notes are relatively consistent with his original description of
events when he met with Respondent. Curley indicated that (1) with respect to the 2001
incident, there was no indication that sexual acts had occurred, and that “it seemed to be
something that could have been misconstrued and was inappropriate behavior at best;”
(2) he did not report the 2001 incident to the police department “because he informed
[J-63-2019] - 40
Spanier;” and (3) he had no knowledge of the 1998 incident or any other such matter
involving Sandusky.” Investigation Notes at 1.
Schultz stands in sharp contrast. Contrary to Curley’s recitation and Respondent’s
version of Schultz’s original disclosures to her, Schultz told the OAG investigator (1) that
while McQueary’s description of the 2001 incident was vague, “it was his impression
based upon the information that he was provided that there was inappropriate sexual
conduct between Sandusky and a minor;” (2) McQueary had related that “Sandusky may
have grabbed genitals;” (3) he was aware of the 1998 incident involving Sandusky and a
child and that he “was sure that Spanier knew of the 1998 incident.” Id.Both witnesses offered testimony before the grand jury that was substantially
identical to these recited interview summaries. The conflicts of interest revealed by these
revelations are obvious. Contrary to Respondent’s testimony that her interview with
Schultz did not result in any report of sexual acts by Sandusky (and thus no knowledge
of possible criminal wrongdoing), Schultz revealed in both his OAG interview and before
the grand jury that he believed and understood that one or more sexual acts had in fact
occurred. Curley was consistent with his denial of any knowledge (much less
involvement) in the 1998 incident, but Schultz was not. To the contrary, Schultz not only
indicated that he knew about the 1998 incident, he also testified that Spanier was
unquestionably aware of it. In his later grand jury testimony, Spanier, also represented
by Respondent, testified that he lacked any knowledge or information relating to the
events in 1998.
The substantial risk of disqualifying conflicts that should have been apparent from
the outset of the service of grand jury subpoenas on the Individual Clients became actual
[J-63-2019] - 41
conflicts at least as early as the OAG interviews preceding the grand jury testimony.
Respondent failed to take any actions in response to this information, resulting in multiple
violations of Rule 1.7. After their interviews and prior to their grand jury testimony,
Respondent should have advised Curley and Schultz that she could not represent either
of them and obtained a continuance until independent counsel could be obtained by them.
She also could not subsequently represent Spanier because Schultz’s recollection of
events linked him (and Penn State) to knowledge of the 1998 incident, which Spanier
consistently (including in his grand jury testimony) denied. The interviews and grand jury
testimony of Curley and Schultz also implicated Spanier with knowledge of Sandusky’s
activities. Although it should have been clear at the time of the service of the subpoena
that the Individual Clients needed personal counsel, the information obtained in the
interviews preceding Curley, Schultz and Spanier’s grand jury testimony cried for the
conclusion that each required experienced personal counsel. The best interests of one
or all of them may have been an offer to cooperate but this advice would or could have
been detrimental to the other concurrently represented clients. Concurrent representation
of Penn State, Curley and Schultz was patently improper and violative of Pa.R.P.C. 1.7.
C. Confidentiality
Pa.R.P.C. 1.6
Pennsylvania Rule of Professional Conduct 1.6, regarding confidentiality, provides
in relevant part as follows:
(a) A lawyer shall not reveal information relating to representation of a client
unless the client gives informed consent, except for disclosures that are
impliedly authorized in order to carry out the representation, and except as
stated in paragraphs (b) and (c).
[J-63-2019] - 42
(c) A lawyer may reveal such information to the extent that the lawyer
reasonably believes necessary:
* * *
(3) to prevent, mitigate or rectify the consequences of a
client's criminal or fraudulent act in the commission of which
the lawyer's services are being or had been used[.]
(4) to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client, to establish a
defense to a criminal charge or civil claim or disciplinary
proceeding against the lawyer based upon conduct in which
the client was involved, or to respond to allegations in any
proceeding concerning the lawyer's representation of the
client;
Pa.R.P.C. 1.6(a), (c). The confidentiality provisions of Rule 1.6 provide broader
protections than does the attorney-client privilege.16 In re Gartley, 491 A.2d 851, 859 (Pa.
Super. 1985), aff’d sub nom. In re Search Warrant B-21778, 521 A.2d 422 (Pa. 1987)
(“The attorney-client privilege is more limited than the ethical obligation of a lawyer to
guard the confidences and secrets of his client.”). As one court has explained,
“The professional rules ... [embrace] a broad ethical duty not
to divulge information about a client.” [Charles W. Wolfram,
Model Legal Ethics § 6.1.1, at 242 (1986)] (emphasis added).
An attorney's duty of confidentiality applies not only to
privileged “confidences,” but also to unprivileged secrets; it
“exists without regard to the nature or source of the
information or the fact that others share the knowledge.”
Perillo v. Johnson, 205 F.3d 775, 800 n. 9 (5th Cir. 2000)
(quoting ABA Model Code of Professional Responsibility
Canon 4, DR 4-101 and EC 4-4) (internal quotation marks and
alterations omitted). “The confidentiality rule applies not
merely to matters communicated in confidence by the client[,]
16 Rule 1.6 encompasses (but is not limited to) the attorney-client privilege which in the
criminal context has been codified as follows: “In a criminal proceeding counsel shall not
be competent or permitted to testify to confidential communications made to him by his
client, nor shall the client be compelled to disclose the same, unless in either case this
privilege is waived upon the trial by the client.” 42 Pa.C.S. § 5928.
[J-63-2019] - 43
but also to all information relating to the representation,
whatever its source.” Id. at 800 n. 10 (quoting ABA Model
Rules of Professional Responsibility 1.6 & cmt.5) (emphasis
added)[.]
In re Gonzalez, 773 A.2d 1026, 1031 (D.C. 2001) (emphasis in original).
Before deciding whether Respondent violated Rule 1.6 during her grand jury
testimony, we must first review the substance of that testimony. When Respondent was
subpoenaed to testify in October 2012, neither she, Curley, Schultz nor Spanier were still
employed by Penn State. Curley and Schultz had been criminally charged and retained
new counsel. Contending that Respondent had represented their clients in their personal
capacities, counsel for Curley and Schultz had both advised the supervising judge of the
grand jury that they were asserting claims of attorney-client privilege with respect to all
communications with Respondent. In a conference held prior to Respondent’s grand jury
testimony that included counsel for the OAG, Respondent’s private counsel, and Penn
State’s new counsel, the participants discussed whether questions posed by counsel for
the OAG would inquire into areas implicating the attorney-client privilege claimed by
Curley and Schultz (and possibly Spanier, who had not yet been charged with a crime).
Hearing Committee Report, Exhibit M. Counsel for the OAG represented that there would
be no inquiries in these areas, and that as a result these privilege issues could await
determination at a future date. Hearing Committee, Exhibits M at 11-12. At this
conference, Penn State expressly waived any privilege it had with respect to
Respondent’s communications with Curley and Schultz (but not Spanier).17 Hearing
17In light of our determination hereinabove that Respondent represented Curley, Schultz
and Spanier in their personal capacities, Penn State’s waivers had no effect upon the
scope of Respondent’s grand jury testimony. Because Respondent represented the three
[J-63-2019] - 44
Committee Report, Exhibits K(e), K(h). The supervising judge accepted OAG’s
representation and Respondent’s grand jury testimony proceeded a few days later.
Hearing Committee Report, Exhibits M at 13.
Respondent’s grand jury testimony began with a review of her confidential
conversations with each of the three administrators regarding Penn State’s compliance
with its subpoena duces tecum:
Q. And let's go through each one. Tell us about your
conversations - we'll start with Tim Curley and what you
discussed with him, what he needed to do to comply with that
subpoena and what happened.
A Well, everybody was told that they - that any people who
worked under them, they had to notify any people who worked
under them to also preserve everything and find out if there
was any Sandusky -related materials so that we could turn
them over to the Office of Attorney General. That was done
with Mr. Curly [sic]. That was done with Mr. Schultz and with
Graham Spanier. I remember a conversation with Graham
about his emails, and he was telling me about how many e-
mails he had because the IT people would have to go in and
get those e-mails.
Q. Did there come a point when you had these conversations
one-on-one with these individuals or were there times when
some or all of them were together and you had these
conversations with him, if you recollect?
A. I know that I had the one-on-one. There may have been times
when they were all together that I have these conversations,
but I really don't remember one of those times.
Q. Again, staying with Mr. Curley, did he get back to you at any
point and tell you whether or not he had evidence or materials
that would be responsive to the Subpoena 1179?
(…continued)
administrators individually, Penn State could not waive or otherwise release Respondent
from her obligations under Rule 1.6 to protect their confidences.
[J-63-2019] - 45
A. Right. Yes.
Q. What did he say?
A. No, he didn't have any materials.
Q. And your conversations with these three gentlemen; Schultz,
Spanier, and Curley, were specific correct? They involved e-
mails, paper files, any information --
A. Anything that could – any document – documents that they
had whether they be electronic or non[-]electronic.
Q. Is it fair to say they assured you they would go through their
e-mails and talk to their staff and find anything that was
responsive?
A. They said they would check and get back to me.
Q. So Mr. Curley gets back to you and says there is nothing?
A. Correct.
Q. And, of course, everybody in these discussions knows that
Sandusky had worked for the Athletic Department for almost
30 years?
A. Right.
Q. And now, tell us about Mr. Schultz, what he told you he would
do and then what response he gave you ultimately?
A. He also indicated that he would – he would look. In fact, he
told me that he would look for anything that he had; and
especially, he was going to look for documents that would help
his recollection and he got back to me specifically and said
that he didn't have anything.
Q. And, again, you mentioned Mr. Spanier and that he provided
detail to you in terms of he told you that he had a great many
e-mails that he could go through right?
A. He said he had a lot of emails because he – he never deleted
anything. So, yeah, he may have had more emails than
anybody else.
[J-63-2019] - 46
Q. That was his claim?
A. Right.
Q. And again, he got back to you and said nothing?
A. No.
Q. He didn't say nothing. He said he didn't have anything?
A. Right. He said, well, all of his e-mails were there, but he didn't
have anything else.
Q. Now, as you know and the grand jury knows, since this case
was charged against Mr. Sandusky and Mr. Curley and Mr.
Schultz, a fair number of e-mails from 1998 and 2001 have
been discovered?
A. I know that now.
Q. Right. And those e-mails relate directly to the 1998
investigation of Sandusky and the 2001 allegations of crime –
well, the criminality has actually been found at this point.
Observed by Mr. McQueary.
Did they ever in any way, shape or form disclose to you when
you were asking them for this materials anything about 1998
or 2001 and the existence of e-mails from those events?
A. Never.
Q. We also know that Mr. Schultz has a file regarding Jerry
Sandusky in his office; and that in that file there were
documents related to his retirement agreement. There were
drafts and other documents related to his employment and his
retirement and then there were also handwritten notes and e-
mails pertaining to the 1998 crimes of Mr. Sandusky and the
2001 crimes of Mr. Sandusky. Again, same question, did he
ever reveal to you the existence of that Sandusky file or any
of its contents?
A. Never. He told me he didn't have anything.
N.T. (grand jury), 10/26/2012 (Respondent testifying), at 16-20.
[J-63-2019] - 47
Respondent’s testimony then turned to her conversations with Spanier. The OAG
interviewed Spanier, accompanied by Respondent, on or about March 22, 2011. On
March 24, 2011, the OAG served Spanier with a subpoena to compel his testimony before
the grand jury on April 13, 2011. Respondent offered the following testimony regarding
Spanier’s preparation for the interview and subsequent testimony:
Q. Okay. Now, tell us, if you would, about your discussions with
Spanier before that interview. I'm specifically interested in,
you know, that anticipation of questions he would have had
going into that interview.
A. Okay. Because being interviewed by the Office of Attorney
General is serious in itself, I said to him, you know, when they
question you, Graham, they are going to talk about things like
– they are going to use words like, sodomy and pedophile
because I didn't want him to be shocked by the questioning
and the type of questioning.
And you have to, you know – you have to be aware that they
are going to use that and you have to tell the truth and you will
go in and be interviewed. He said to me, you know that is fine.
I know that. No problem. That was it.
Q. Okay. Well, tell us about the context, too, that these questions
were likely to rise. In other words, at that point in time, March
of 2011, is Graham Spanier fully aware that he is likely to be
asked about the 1998 investigation of Sandusky and the 2001
allegations of Mike McQueary?
A. He is fully aware of both 1998 and what was then 2002 but,
yes. He was very aware of those and there is – there is no
doubt because at some point, I became aware of the 1998
and went to get the report.
Q. Okay. And let's talk about that. You got the report from the
1998 investigation, I believe, in January of 2011, correct?
A. Urn-hum. That is correct.
Q. And that copy of the report that you had, was it copied and
given to Spanier or disbursed to Spanier, Schultz, Curley or
tell us about that?
[J-63-2019] - 48
A. No. It was not disbursed because we had certain
considerations because of various laws that there are and
because of that, our office got the copy; but it was not
disseminated even though Graham was aware that I had
gotten a copy of the report.
Q. Okay. Did he ever ask to – to read it or come to your office as
far as you know and read it?
A. No, he did not.
Q. And what was he telling you about the 1998 investigation?
A. That he didn't know anything.
Q. Now, however, before he comes to the interview, he knows
that he is going to be questioned about that?
A. He is aware of that.
Q. Okay. Now, is he aware of that just from his conversations
with you or did he become aware that he was getting that
information from somewhere else as well?
A. He appeared to be getting the information from elsewhere.
Q. Well, tell us, you know, what you come to understand.
A. I came to understand that he was having other discussions
with Mr. Curley and Mr. Schultz.
Q. Okay. That understanding – tell us how clear it was. Was that
what Spanier was telling you?
A. Correct.
Id. at 22-25.
Respondent also provided a review of Spanier’s representations to her regarding
the limited nature of his involvement in the resolution of the 2001 incident:
Q. Now, as I understand it, and again, I don't want to
mischaracterize anything, what Spanier has been telling you
through this whole period of time is that he knows nothing
[J-63-2019] - 49
about the 1998 investigation of Sandusky, he didn't know
anything about it at the time, 1998?
A. Correct.
Q. And that in 2001, he was told very little about that. Can you
tell us what he specifically was saying to you about those two
incidents?
A. What he was saying is basically this: I'm the President of the
University. With this situation, it was a situation I expected my
Senior Vice President and the Athletic Director to handle.
Needless to say, they came to see me. We had a discussion,
and I thought they handled it.
Q. Had he ever provided you any details about his involvement
in the 2001 situation?
A. I remember that he had talked about they had come to him
and they had reached a decision [about] what they were going
to do and that he – his expectation was that Tim and Gary
would take care of it.
Q. Well, in addition to that, did he ever articulate, you know, what
it was that he was told was seen in the shower?
A. Yeah. Horsing around. Horseplay.
Q. And that was - are those the words or the type of words that
he used repeatedly?
A. Those were the words that he used. Horsing around and
horseplay.
Id. at 39-40.
Finally, Respondent testified to the grand jury regarding her reactions to Spanier’s
interviews with the New Yorker magazine and ABC Nightline:
Q. Okay. Let me talk to you about your perspective now on all of
this. At the time that these events are occurring, and I don't
mean to be incredibly obvious here, but at the time that these
this investigation is occurring, you have no awareness of the
e-mails from 1998 and 2001 and the other documents that
[J-63-2019] - 50
demonstrate their awareness and involvement in the 1998
and 2001 incidents, correct?
A. Correct.
Q. And want – what information are you operating on? What
presumption are you acting on?
A. I'm operating under the presumption that they have told me
the truth. They don't know anything else. They have told me
the truth. Graham has said that he – what he doesn't know
and I believed him.
Q. There is a great deal of time that has passed, a great deal of
new information has come to light, a great deal of water under
the bridge. Based upon what you know now, what can you
tell us about Spanier's representations to you through this
lengthy period of the investigation?
A. That he is - that he is not a person of integrity. He lied to me.
Q. In retrospect, how would you characterize the decisions and
actions that he made during the investigation? Why did he tell
you the lies? Why did he say the things that he said to you?
A. I can't get inside his mind, but the fact is that there is no doubt
that he lied to me. I can't think of any reason, other reason for
lying than trying to hide it from me.
Id. at 66-70.
Just four days after Respondent’s testimony the grand jury recommended criminal
charges against Spanier, and the OAG charged him with failure to report suspected child
abuse, perjury, obstruction of justice, endangering the welfare of children, and conspiracy
related to these crimes. Hearing Committee Report, Exhibit U. Simultaneously, the grand
jury recommended additional criminal charges against Curley and Schultz, and the OAG
filed charges against them for endangering the welfare of children, obstruction of justice
and conspiracy related to obstruction of justice, perjury and endangering the welfare of
children. Id., Exhibits R, T.
[J-63-2019] - 51
Based upon our review of Respondent’s grand jury testimony, we conclude that
she violated the strictures of Pa.R.P.C. 1.6(a) on multiple occasions. Rule 1.6(a) prohibits
an attorney from disclosing any information relating to a representation, except in
circumstances where the client consents to disclosure or where disclosures are impliedly
authorized in order to carry out the representation. We agree with the Disciplinary Board
that neither Curley, Schultz nor Spanier consented to Respondent’s disclosure of
confidential disclosures they made to her in private conversations. We likewise agree
with the Disciplinary Board that Respondent’s disclosures of certain confidences were not
“impliedly authorized in order to carry out the representation.” While Respondent’s
disclosures may well have been “impliedly authorized” to carry out her representation of
Penn State relative to its production of documents in connection with the subpoena duces
tecum, the “representation” at issue with respect to “implied authorization” under Rule
1.6(a) is the representation of the client “whose information is protected by Rule 1.6.”
ABA Formal Ethics Op. 08-450 (2008). Respondent’s disclosures related to the
production of documents pursuant to the subpoena duces tecum in no respect were
“impliedly authorized” to carry out her personal representations of Curley, Schultz or
Spanier, the three clients whose confidences she disclosed and who were not under a
subpoena duces tecum. In the absence of their informed consent, Rule 1.6(a) did not
permit the disclosure of their confidences to third parties.18 While each of the Individual
Clients were former or current employees of Respondent’s client Penn State and, as
such, could have been interviewed in connection with Penn State’s response to the
18Concurrent clients’ confidences may be shared with each other. See Pa.R.P.C. 1.6
cmt. 30 (“With regard to the attorney-client privilege, the prevailing rule is that, as between
commonly represented clients, the privilege does not attach.”).
[J-63-2019] - 52
subpoena duces tecum to Penn State, under the circumstances presented, they were
entitled to personal counsel during such an interview. As discussed, it was reasonable
for the Individual Clients to believe that Respondent was acting as their personal counsel
when discussing matters relating to Sandusky.
Respondent asserts a number of defenses to ODC’s claims of violations of Rule
1.6(a). As an overarching defense, Respondent relies on the concept of waiver applicable
to the attorney-client privilege. In this regard, we note that Respondent offers no legal
analysis to explain the alleged interplay between the attorney-client privilege, an
evidentiary privilege, and the duty of confidentiality embodied in the Rules of Professional
Conduct, specifically Rule 1.6(a). Pertinently, Respondent does not explain how the
waiver of an evidentiary privilege can be the basis of an ex post facto defense to a
disciplinary claim when the client, the holder of the claim, was not heard in the evidentiary
proceedings before the allegedly waived communication is discussed.
The attorney-client privilege is statutorily codified and provides:
In a criminal matter counsel shall not be competent or
permitted to testify to confidential communications made by
his client, nor shall the client be compelled to disclose the
same, unless in either case this privilege is waived upon trial
by the client.
42 Pa.C.S. § 5916.19 Despite the language of the statute, communications from an
attorney to a client – not just communications by a client to an attorney – are protected
under Pennsylvania law. Gillard v. AIG Insurance Company, 15 A.3d 44 (Pa. 2011).
With regard to this privilege and with respect to Spanier, Respondent contends
that he waived his attorney-client privilege when he discussed certain of the events in
19 The same definition is codified to apply to civil matters. 42 Pa.C.S. § 5928.
[J-63-2019] - 53
question here in communications he made after his termination from Penn State but
before Respondent testified before the grand jury – including in an open letter Spanier
wrote the Penn State Board of Trustees and in interviews with the New Yorker magazine
and ABC News. In her brief filed with this Court, Respondent focuses in particular on the
following passage from Spanier’s open letter to the Board of Trustees:
In reporting to the Trustees, I was guided by and followed all
instructions from the University's General Counsel. She told
me very little about how she was handling the Grand Jury
investigation. She never told me anything about the content
of the interviews with athletic department staff or the Curley
and Schultz Grand Jury testimony or the interview of Curley
and Schultz by the Attorney General when she was present.
She did tell me on at least three occasions, however, that this
was the third or fourth Grand Jury on this matter, that there
appeared to be no issue for the University, and that the
Attorney General did not seem to have any evidence to
suggest that something happened involving Penn State. She
had, she said, spoken several times to Attorney General staff.
I was never told by her of any materials being subpoenaed
from the University, or even that I had been subpoenaed to
testify. She told me I was going voluntarily, as I had previously
agreed to do, and she accompanied me before the judge and
in the Grand Jury room and sat through my testimony. I had
no preparation or understanding of the context. As I was
being sworn in for my Grand Jury appearance, much to my
surprise she handed over to the judge a thumb drive
containing my entire history of emails back to 2004.
Hearing Committee Report, Exhibit EEE. Spanier made similar statements in his New
Yorker magazine and ABC News interviews. Id., Exhibits LL, MM.
In support of this claim of waiver of the attorney-client privilege, Respondent relies
upon this Court’s recent decision in BouSamra v. Excela Health, 210 A.3d 967 (Pa. 2019),
contending that this case “should put to rest any notion that Spanier’s open disclosures
of purportedly confidential and attorney-client privileged communications were not a
complete waiver.” Respondent’s Brief at 34. In BouSamra, during discovery in a civil suit
[J-63-2019] - 54
BouSamra sought the production of certain documents that Excela’s in-house counsel
shared with the company’s media consultants, including in particular a memorandum from
Excela’s outside counsel containing legal advice on matters related to facts that were
subsequently litigated. BouSamra, 210 A.3d at 971. This Court, concluding that the
attorney-client privilege did not extend to the media consultants, affirmed the lower court’s
finding of waiver. Id. Aside from the fact-specific determination of the relationship of the
media consultant as a third-party to the client, BouSamra did not plow new legal ground.
BouSamra is irrelevant to this case. In BouSamra, we restated the established
proposition that evidentiary privileges are not favored because they are in derogation of
the truth-determining process. BouSamra, 210 A.3d at 975 (citing Commonwealth v.
Stewart, 690 A.2d 195, 197 (Pa. 1997)). Inherent in the determination of waiver of the
attorney-client privilege is an evidentiary proceeding20 in which the privilege can be
claimed by the client and the assertion of waiver advanced by the party seeking the
disclosure.21 Respondent takes the position that the mere fact of Spanier’s public
20 In BouSamra, BouSamra filed a motion to compel the questioned documents and
Excela filed a written response, at which time the trial court appointed a special master to
review the documents in camera. BouSamra, 210 A.3d at 971.
21 We are unaware of any reported case involving a claim of a general waiver of the
privilege by a client to justify disclosure of confidential communications after the fact of
disclosure. In the ordinary course of evidentiary proceedings, the party opposing the
client in a legal proceeding raises the claim of waiver to overcome the privilege; an
attorney called to testify about privileged communications asserts the client’s privilege
and refuses to testify until the waiver issue is resolved.
Of relevance here on the issue of a prior judicial determination of waiver, Pa.R.P.C. Rule
3.10 prohibits a public prosecutor or government lawyer from subpoenaing an attorney to
appear before a grand jury to provide evidence concerning a person who is or has been
represented by the attorney/witness “without prior judicial approval.” Comment 1 to Rule
3.10 provides that the required “prior judicial approval” specifically requires, inter alia, a
finding that “the information sought is not protected by Rule 1.6, the attorney-client
[J-63-2019] - 55
comments waived the attorney-client privilege and she alone could make the
determination that his privilege was destroyed. This is, of course, an untenable
proposition. Absent an evidentiary proceeding in which the privilege and waiver issues
can be adjudicated, an attorney cannot rely on her self-determined and potentially self-
serving conclusion that she has been relieved of her duty of confidentiality. See, e.g.,
Commonwealth v. Flor, 136 A.3d 314, 329 (Pa. 2016) (holding that while the filing of a
claim of attorney ineffectiveness constitutes a waiver of the attorney-client privilege as to
the matters at issue, it was error for the trial court not to conduct an issue-specific analysis
to determine the extent and scope of the waiver); Bagwell v. Pa. Dept. of Edu., 103 A.3d
409, 420 (Pa. Commw. 2014) (where the issue of waiver of the attorney-client privilege is
raised, the burden shifts to the party asserting waiver to demonstrate that a waiver has in
fact occurred).
This Court is acutely aware of the ruling made by the supervising judge of the
grand jury prior to Respondent’s testimony (see discussion supra at 12-13). Curley and
Schultz, through counsel, advised both the Respondent and the supervising judge of their
claims of privilege for their communications with Respondent in connection with their
grand jury representation. Spanier had not yet done so but it was anticipated that he
would. The supervising judge specifically decided to postpone deciding whether
Curley, Schultz and Spanier held a personal privilege with Respondent. To the extent
that the OAG ever intended to assert the waiver of the privilege in a proceeding where
that determination could be made, it did not do so.22
(…continued)
privilege or the work product doctrine.” In the context of Respondent’s testimony before
the grand jury, this was the evidentiary proceeding in which to advance any waiver claims.
[J-63-2019] - 56
The Respondent’s claim of waiver of the attorney-client privilege by Spanier to
justify her disclosures of confidential communications made during her representation of
Spanier has no merit. Absent an express consent to disclosure of confidential
communications, an attorney may not self-determine waiver.
Also relying on principles of waiver, Respondent claims that Curley, Schultz and
Spanier waived their attorney-client privilege by asserting, in “motions, pleadings, [and]
affidavits” filed in connection with their defenses to criminal charges before the common
pleas court, that Respondent had engaged in professional misconduct with regard to her
alleged representation of them and had attacked the quality of her advice and counsel as
their individual counsel. Respondent’s Brief at 32 (citing Commonwealth v. Chmiel, 738
A.2d 406, 414 (Pa. 1996) (holding that attorney-client privilege is waived in a case alleging
a claim of ineffective assistance of counsel claim under the Post-Conviction Relief Act,
42 Pa.C.S. §§ 9541-46)), and Nationwide v. Fleming, 924 A.2d 1259, 1264-65 (Pa. Super.
1997), aff'd on other grounds by an equally divided court, 992 A.2d 65 (Pa. 2010),
abrogated on other grounds, Gillard v. AIG Ins. Co., 15 A.3d 44 (Pa. 2011).
This claim has no merit. While it is true that Curley, Schultz and Spanier did
challenge various aspects of Respondent’s representation of them in legal proceedings,
they did not do so until well after Respondent had testified before the grand jury.
Respondent testified before the grand jury on October 26, 2012. Curley, Schultz and
Spanier, however, did not file motions in the Court of Common Pleas of Dauphin County
(…continued)
22 It is not obvious that waiver of privilege was an issue contemplated by the OAG. It
appears from the record that the OAG relied solely on the theory that Respondent did not
represent the Individual Clients personally, and the privilege was Penn State’s to control.
Fina N.T. 8/1/2018 at 926.
[J-63-2019] - 57
challenging Respondent’s representation until a year later, in October and November of
2013. Hearing Committee Report, Exhibits R, T, U. As a result, even if the former
administrators’ various filings in criminal court resulted in a waiver of the attorney-client
privilege in those proceedings, there was no waiver at the time Respondent testified
before the grand jury. Moreover, the exception to Pa.R.P.C. 1.6(a) set forth in Rule
1.6(c)(4)23 has no application. At no time (either before the trial court, the Court of
Common Pleas of Dauphin County, or the Hearing Committee) did Respondent testify
that prior to her grand jury testimony she had anticipated that she might later be required
to defend herself in subsequently commenced criminal or disciplinary proceedings. In
reality, Respondent was required to defend herself in subsequent legal proceedings
because of her disclosure of confidences. Thus, the charges she defended against were
created by her violation of Rule 1.6.
23 Rule 1.6(c)(4) provides:
Rule 1.6. Confidentiality of Information
* * *
(c) A lawyer may reveal such information to the extent that the
lawyer reasonably believes necessary:
* * *
(4) to establish a claim or defense on behalf of the lawyer in a
controversy between the lawyer and the client, to establish a
defense to a criminal charge or civil claim or disciplinary
proceeding against the lawyer based upon conduct in which
the client was involved, or to respond to allegations in any
proceeding concerning the lawyer's representation of the
client;
Pa.R.P.C. 1.6(c)(4).
[J-63-2019] - 58
In addition to reliance on the attorney-client privilege waiver argument,
Respondent points to the exceptions to Rule 1.6(a)’s disclosure requirements as set forth
in Rule 1.6(c). Rule 1.6(c)(3) allows an attorney to disclose confidential communications
“to prevent, mitigate, or rectify the consequences of a client’s criminal or fraudulent act in
the commission of which the lawyer’s services are being used or had been used.”
Pa.R.P.C. 1.6(c)(3). The framework for analyzing whether Respondent’s grand jury
testimony “prevented, mitigated, or rectified” the criminal conduct of the three Penn State
administrators is addressed in the comment to Rule 1.6(c)(3), which provides that “[i]f the
lawyer’s services were made an instrument of the client’s crime or fraud, the lawyer has
a legitimate and overriding interest in being able to rectify the consequences of such
conduct.” Id. comment 13 (emphasis added).
Respondent argues that the administrators were using her “to hide responsive
documents from the OAG,” Respondent’s Brief at 42, apparently suggesting that her
services were used in the commission of the crime of obstruction of justice by concealing
documents reflecting their involvement with the Sandusky matters. The Hearing
Committee agreed with this contention, explaining as follows:
Here the individual employees had obstructed justice by
failing to produce responsive documents they knew existed
with intent to prevent themselves from being incriminated.
They did so by lying to Respondent with the understanding
that she would knowingly use their denials of additional
information in responding to the subpoena for the University
and them [sic], which is precisely what she did: She
responded to a lawful subpoena in her capacity as their lawyer
[sic] and an officer of the court by unwittingly transmitting their
lies as the truth. When she discovered how her services had
been used in this course of the commission of the crime of
obstruction of justice, she revealed how they had done this
with her testimony before the Grand Jury. We find this to be
a clear example of her right to do so under Rule 1.6(c)(3), and
[J-63-2019] - 59
accordingly find that her testimony in this regard is not
misconduct on this basis either.
Hearing Committee Report at 60.
This conclusion is dubious. Curley, Schultz and Spanier did not themselves
receive a subpoena duces tecum and Respondent did not respond to Penn State’s
subpoena duces tecum as their lawyer but rather as Penn State’s lawyer. As of early
2011, Curley, Schultz and Spanier could not have been engaged in a conspiracy “to hide
responsive documents from the OAG.” At most, they delayed a response because
Respondent did not avail herself of other resources to produce the documents in the
possession of Penn State. These administrators had no control over any responsive
documents, which include the contents of the “secret file” found in Schultz’s former office
and the trove of incriminating emails on Penn State’s computer servers. It is pertinent to
emphasize that there was no allegation that documents were destroyed by the Individual
Clients and, in fact, the smoking gun documents were at all times in the possession of
Penn State and were ultimately produced after Penn State hired special investigative
counsel (see supra footnote 3).
For reasons known only to the OAG, Respondent was never questioned as to what
steps, if any, she took to respond to the subpoena duces tecum other than her efforts to
locate documents through inquiry to her Individual Clients. By the time of Respondent’s
grand jury testimony, millions of responsive documents had been produced to the grand
jury through the efforts of special investigative counsel in coordination with Penn State’s
SOS unit. The questions posed by OAG’s counsel were specific only to Curley’s, Schultz’
and Spanier’s communications to Respondent in response to her inquiries about their
possession of documents responsive to the subpoena duces tecum.
[J-63-2019] - 60
It is clear from Respondent’s answers to OAG counsel’s questions that she tasked
Curley, Spanier and Schultz (who was no longer an employee of Penn State) with the
responsibility of cumulating documents, including electronically stored emails, for Penn
State’s response to the subpoena.
A Well, everybody was told that they – that any people who
worked under them, they had to notify any people who worked
under them to also preserve everything and find out if there
was any Sandusky-related materials so that we could turn
them over to the Office of Attorney General. That was done
with Mr. Curly [sic]. That was done with Mr. Schultz and with
Graham Spanier. I remember a conversation with Graham
about his emails, and he was telling me about how many e-
mails he had because the IT people would have to go in and
get those e-mails.
N.T. (grand jury), 10/26/2012 (Respondent testifying), at 16. In that very few documents
were produced until special investigative counsel was engaged, we must conclude that
she believed her obligation to investigate and respond to the subpoena duces tecum was
fulfilled without any independent request to the SOS unit to search for documents, even
though the protocol for handling responses to subpoena duces tecum was well
established and required the involvement of the SOS unit to respond to any subpoena.
As previously discussed, Respondent’s failure to investigate prior to undertaking
the concurrent representation of the Clients was a breach of the duty of competent
representation pursuant to Rule 1.1. Even so (or because of it), based on the record
before us, we cannot conclude that Respondent believed that she had any further
responsibilities in responding to the subpoena or that it was anything other than the
Individual Clients’ responsibilities to gather and produce documents. Moreover, believing
the Respondent’s grand jury testimony as we must because it is uncontradicted, the
[J-63-2019] - 61
responses of Curley, Schultz and Spanier, at the least, delayed the timing of a full
response to the grand jury’s subpoena duces tecum.
However, the Respondent’s disclosure did not rectify the use of her services to the
extent they lied to her about the non-existence of documents related to Sandusky matters.
By the time she made the disclosures about their confidential communications in her
grand jury testimony, all of the responsive documents in the possession of Penn State
had been produced to the grand jury. Rule 1.6(c)(3) does not authorize disclosure by an
attorney to gratuitously incriminate a client. When the disclosure does not serve the
purpose of preventing, mitigating or rectifying the consequences of the use of the client’s
services, disclosure is not authorized.24
Finally, Respondent now contends that she was justified in disclosing client
confidences under Rule 1.6(c)(4), which provides, inter alia, that a lawyer may reveal
such information to the extent that the lawyer reasonably believes necessary to establish
24 Without any legal analysis, Respondent states that the common law crime-fraud
exception to the attorney-client privilege allowed her to disclose client confidences to the
grand jury. Respondent’s Brief at 37-43.
Respondent does not grapple with the precise language of Rule 1.6(c)(3) which
unequivocally states that an attorney may only reveal confidences associated with
criminal or fraudulent activities if, at the time of said disclosures, doing so would prevent,
mitigate or rectify the consequences of the client’s wrongful actions. Rule 1.6(c)(3) does
not permit disclosures of prior crimes where the only effect or purpose of the revelations
is to incriminate the client. See United States v. Zolin, 491 U.S. 554, 562-63 (1989)
(stating that the benefit of revealing a past harm that can no longer be prevented does
not outweigh the injury to attorney-client relations that would result from such a
disclosure).
For the reasons previously discussed, we conclude that Respondent’s disclosures of
confidential communications with the Individual Clients did not prevent, mitigate or rectify
the use of her services to the extent they lied to her about the existence of documents
related to Sandusky matters. Rule 1.6(c)(3) thus has no application here.
[J-63-2019] - 62
a defense to a criminal charge or civil claim or disciplinary proceeding against the lawyer
based upon conduct in which the client was involved. Pa.R.P.C. 1.6(c)(4).
Respondent argues that she was justified under Rule 1.6(c)(4) in disclosing the
confidences because at the time of her testimony before the grand jury, she understood
that the OAG suspected her of obstruction of justice in connection with Penn State’s
production of documents in response to the subpoena duces tecum. She points to the
testimony of Fina who indicated that the OAG was “aggressively conducting an
investigation as to whether [Respondent] and others may have had criminal liability for,
again, obstruction, hindering you know.” N.T., 5/22/2018, at 261.
The record does not reflect, however, that at the time of her grand jury testimony
Respondent knew that she was under suspicion or faced any criminal liability. While she
indicated before the Hearing Committee that she received a letter dated December 19,
2011, raising questions regarding Penn State’s continuing failure to provide documents
in response to the subpoena duces tecum, she also acknowledged that the letter “was
not a personal contempt letter,” but rather was addressed to Penn State’s failures, not
her own. N.T., 5/23/2018, at 402. In this regard, it is also significant that by the time
Respondent testified before the grand jury (October 26, 2012), Penn State had largely
complied, if not completely, with the subpoena duces tecum. Respondent’s testimony
before the Hearing Committee failed to establish that she understood that the OAG
suspected her of possible criminal wrongdoing at the time she testified before the grand
jury. Respondent responded to a question as to whether she understood that the OAG
considered her a criminal suspect by indicating that “I did learn that much later.” N.T.,
5/23/2018, at 403.
[J-63-2019] - 63
Moreover, Fina’s testimony at the Hearing Committee’s evidentiary proceedings,
in which he suggested that she was a target in an “aggressive investigation” regarding
possible obstruction of justice charges against her for failure to comply with the subpoena
duces tecum, is itself questionable. A review of the transcript of Respondent’s grand jury
testimony reflects that Fina’s questioning plainly does not reflect any “aggressive
investigation” of possible criminal wrongdoing by Respondent. Other than having
Respondent confirm that neither Curley, Schultz nor Spanier provided her with any
Sandusky-related documents upon her request, Fina did not question Respondent
regarding the slow pace of Penn State’s production of documents responsive to the
subpoena duces tecum while Respondent was primarily responsible for compliance. In
this regard, it is significant that Fina asked Respondent no questions relating to the grand
jury’s finding, as set forth in its Grand Jury Presentment, that upon service of the
subpoena duces tecum on Penn State in January 2011, it had not been sent to Penn
State’s specialized SOS unit or any other information technology professionals to collect
documents (including emails) related to Sandusky matters. Grand Jury Presentment at
23. As previously described, Fina’s questioning of Respondent focused almost
exclusively on implicating Curley, Schultz and Spanier for their efforts to avoid the
disclosure of incriminating documents and not on any wrongdoing by Respondent.
Because the record does not reflect that Respondent believed that she was
potentially subject to criminal liability at the time she disclosed client confidences during
her grand jury testimony, we cannot conclude that her disclosures were made as a
defense to any such unanticipated criminal charges. Respondent violated Rule 1.6(a)
repeatedly in her grand jury testimony by disclosing client confidences without the
[J-63-2019] - 64
Individual Client’s informed consent and without justification otherwise set forth in
Pa.R.P.C. 1.6(c)(3) or (4).
D. Conduct Prejudicial to the Administration of Justice
Pa.R.P.C. 8.4(d)
Pa.R.P.C. 8.4(d) makes it “professional misconduct” for a lawyer to “engage in
conduct that is prejudicial to the administration of justice.” Pa.R.P.C. 8.4(d). Curley,
Schultz and Spanier were charged with multiple crimes based on their testimony before
the grand jury. Our Superior Court, in a decision not appealed to this Court, concluded
that Respondent had revealed confidential communications between herself and the
three administrators and that Respondent breached the attorney-client privilege and was
incompetent to testify during her grand jury testimony. The Superior Court also
determined that Schultz was constructively denied counsel during his grand jury
testimony. As a result, the Superior Court quashed the counts of obstruction of justice
and related conspiracy as to Curley; perjury, obstruction of justice and related conspiracy
as to Schultz; and perjury, obstruction of justice and related conspiracy as to Spanier.
Respondent’s multiple violations of the Pennsylvania Rules of Professional
Conduct thus resulted in an inability to prosecute Curley, Schultz and Spanier on a wide
number of criminal charges. The Disciplinary Board thus properly found that her conduct
was prejudicial to the administration of justice in violation of Rule of Professional Conduct
8.4(d).
IV. Discipline
We turn to the appropriate form of discipline for Respondent’s professional
misconduct. The Disciplinary Board, having concluded that Respondent poses no danger
[J-63-2019] - 65
to the public25 or the profession and recognizing that her misconduct here did not reflect
any dishonesty in the practice of law, recommends that this Court neither suspend nor
disbar her. Instead, the Disciplinary Board recommends that this Court discipline
Respondent by and through a public censure.26
The primary purpose of our lawyer discipline system in Pennsylvania is to protect
the public, preserve the integrity of the courts, and deter unethical conduct. See Office
of Disciplinary Counsel v. Czmus, 889 A.2d 1197, 1203 (Pa. 2005); In re Iulo, 766 A.2d
335, 339 (Pa. 2001). Consistency in the results reached in disciplinary cases is always
an important priority, as similar misconduct should not be punished in radically different
ways. Office of Disciplinary Counsel v. Lucarini, 472 A.2d 186, 190 (Pa. 1983). We must
be mindful, however, that each case must be judged on its own facts, as it is subject to
our exclusive jurisdiction and de novo review. Id.While the discipline imposed in prior cases is typically instructive, this case
presents a unique circumstance, as we have not identified any prior case that presents
similar facts and circumstances to those at issue here. Recognizing that Respondent has
not been the subject of previous disciplinary proceedings and noting that the current
violations do not reflect any intentional dishonesty, the Disciplinary Board has
recommended that the appropriate discipline for Respondent is a public censure to be
administered by this Court, as opposed to a public reprimand to be administered by the
Board. In so recommending, the Disciplinary Board relies upon prior disciplinary cases
25 At the time of the Hearing Committee proceedings, the Respondent was acting as an
arbitrator. N.T., 5/23/2018, at 350.
26 Respondent argues that even if she violated any rule, discipline is not warranted.
Respondent’s Brief at 59.
[J-63-2019] - 66
that do not effectively capture the totality or the consequences of the violations that are
present here. In particular, the Disciplinary Board references the following matters:
 Office of Disciplinary Counsel v. Blair Harry Hindman, No. 122 DB 2013
(D.Bd. Rpt. 12/8/2014) (S. Ct. Order 2/10/2015), in which this Court, based
upon a recommendation by the Disciplinary Board, publicly censured an
attorney who redacted information from a document that was unfavorable
to his client and submitted the document to the court.
 Office of Disciplinary Counsel v. Charles J. Allano, No. 25 DB 2003 (D. Bd.
Rpt. 8/31/2005) (S. Ct. Order 12/1/2005), in which the attorney, while
serving as a part-time district attorney, dropped criminal charges against a
defendant while simultaneously representing that defendant's wife in an
unrelated matter. Based upon the Disciplinary Board’s recommendation,
this Court publicly censured the attorney.
 Office of Disciplinary Counsel v. John Allen Roth, No. 139 DB 2016 (D, Bd.
Order 9/13/2016), in which the attorney violated RPC 1.7(a) and 8.4(d) by
engaging in a conflict of interest in two matters, which required opposing
counsel to petition the court to have the respondent disqualified. Noting a
prior instance of misconduct that resulted in a public reprimand, the
Disciplinary Board recommended another public reprimand, which this
Court imposed.
 Office of Disciplinary Counsel v. Carol Tatum Herring, No. 153 DB 2017
(D.Bd. Order 10/16/2017), in which the attorney represented the parents of
juveniles that county authorities sought to remove as a result of repeated
instances of sexual abuse. The attorney was found to have violated Rule
1.1 by failing to follow court orders and directives, demonstrating a lack of
understanding of the rules of the court and rules of evidence, and failing to
timely appeal the correct adjudication. The attorney also violated Rule 1.7
by failing to recognize a conflict of interest in simultaneously representing
both her clients and their two older children. With no prior disciplinary
history, the attorney received a public reprimand.
Disciplinary Board Report at 46-48.
Given the unique circumstances presented in the current case, these prior
decisions do not adequately guide our decision with regard to the appropriate discipline
to impose. Unlike the cases relied upon by the Disciplinary Board, which involved a single
(or a limited number) of transgressions of the disciplinary rules, the present situation
[J-63-2019] - 67
involves a high profile case subject to intense public scrutiny in which Respondent failed
in her responsibilities to four clients by undertaking their representations in a highly
specialized forum implicating the criminal laws in which she had no prior experience27
and without consulting with experienced counsel to guide or advise her. She failed to
prepare herself or her clients for their grand jury testimony. She also failed to conduct
any proper investigation into potential conflicts of interests between her clients before
accepting the multiple representations. In her grand jury testimony, she impermissibly
revealed many client confidences, which in turn led to criminal charges being filed against
her clients. With respect to Spanier, she all but guaranteed that the grand jury would
recommend criminal charges, telling the grand jury that Spanier “knew about the 1998
incident [and] he knew about the shower too,” and further referred to him as “not a person
of integrity.” N.T. (grand jury), 10/26/2012 (Respondent testifying), at 60, 70. Poignantly,
as a result of her disclosures of client confidences before the grand jury in violation of
Rule 1.6, certain criminal charges against the Penn State administrators were not able to
be prosecuted. In sum, her simultaneous representations of Penn State, Curley, Schultz
and Spanier reflected incompetence, violated her obligation to avoid conflicts of interest,
resulted in the revelation of client confidences, and prejudiced the proper administration
of justice in cases with significant personal and public effect.
27 On its own, a lack of prior experience in an area in which the attorney is unfamiliar is
not grounds for a violation of Rule 1.1. Pa.R.P.C. 1.1 cmt. 2. Per comment 2 to Rule 1.1,
a lawyer may provide adequate representation in a wholly novel field “through necessary
study” or consultation with an attorney of established confidence in the field in question.
Id. For the reasons set forth hereinabove, Respondent made no effort to overcome her
lack of experience in the present case.
[J-63-2019] - 68
While we agree with the Disciplinary Board’s acknowledgement that Respondent
has never been the subject of prior disciplinary proceedings, this mitigating factor is offset
by her lack of remorse for her actions. In her briefs filed with this Court, Respondent has
seen fit to cast blame for her problems on everyone involved here including the
Disciplinary Board, the ODC, the Superior Court, and the Individual Clients.
Respondent has held a license to practice law in this Commonwealth for
approximately twenty years.28 During this time, she has had an unblemished record,
marred by the two episodes of misconduct detailed in this Opinion: undertaking the
conflicted and incompetent representations of the Clients and the subsequent breach of
her duties to maintain client confidences.
At the time of her disciplinary hearing testimony in May 2018, Respondent, then
73 years old, testified about the extreme stress associated with the fallout from her
representations of the Clients and the emotional and physical impact of it. N.T.,
5/23/2019, at 349-51. While we have no doubt that most lawyers who are the subject of
disciplinary proceedings experience stress in the process, Respondent’s experience was
intensified because of the significant and persistent public attention associated with her
role as general counsel to Penn State in the aftermath of the Sandusky grand jury
investigation.
We are also cognizant that the Respondent’s disciplinary process has a public
element to it, unlike most such proceedings. The Hearing Committee’s and the
28 Respondent was admitted to practice in 1980 and did so until 1989 when she became
a common pleas court judge and then an appointed justice to the Pennsylvania Supreme
Court where she served until January 2008 after which her license to practice was
reactivated.
[J-63-2019] - 69
Disciplinary Board’s recommendations attracted media attention, as did the oral argument
before this Court. We do not discount the effect of the publication of this Opinion
recounting Respondent’s violations of our rules. It is, in itself, a public censure.
Even against this background and with confidence that the Respondent is unlikely
to violate our Rules of Professional Conduct again, we find it necessary to impose
discipline in the nature of a public reprimand to be administered by the Disciplinary Board.
This is because we are concerned that Respondent has never contemplated, much less
expressed, remorse. It is our belief that a public reprimand will reinforce our trust that the
Respondent’s legal career will go forward without another blemish.
We hereby impose discipline in the form of a public reprimand, to be administered
by the Disciplinary Board. Respondent is ordered to pay the costs of investigation and
prosecution in this matter.
Justices Dougherty, Wecht and Mundy join the opinion.
Chief Justice Saylor and Justices Baer and Todd did not participate in the
consideration or decision of this case.
[J-63-2019] - 70