Counsel for Penn State University, who purported to represent university employees at a grand jury investigation into the Jerry Sandusky sexual abuse scandal, could not provide adequate counsel to them as individuals and was incompetent to testify as to her communications with them, an appellate court in Pennsylvania has ruled.

The Pennsylvania Superior Court has reversed a trial court and dropped counts of perjury, obstruction of justice, and conspiracy against three employees who were charged in the aftermath of the case.  (Commonwealth v. Schultz, Superior Ct., PA, No. 280 MDA 2015, 1/22/16, Commonwealth v. Spanier, 304 MDA 2015, 1/22/16, and Commonwealth v. Curley, No. 299 MDA 2015, 1/22/16.)

University counsel Cynthia Baldwin attended interviews with the Attorney General’s office and subsequent grand jury proceedings at which the university president, a senior vice president in charge of the university police, and a former athletic director were asked about an allegation of Sandusky’s inappropriate behavior with a minor in 1988.  At the grand jury, she indicated that she represented each of the individuals, without expressly stating that she represented them solely in their capacity as agents for the university, and not in their individual capacity.

Baldwin was subsequently called before the grand jury herself and testified about her conversations with the three employees.  None of them had waived any right of confidentiality arising from their perception that they were talking with their own attorney.   The three were subsequently charged with perjury, obstruction of justice, and conspiracy based largely on Baldwin’s testimony.

The trial judge found that they were properly represented and that no attorney-client privilege existed.  In separate but similar opinions, the Superior Court has reversed and found that they were constructively denied counsel during their grand jury appearance and that Baldwin was “incompetent” because of her attorney-client relationship to testify as to her discussions with them.

In the lead opinion involving Gary Shultz, the vice president in charge of campus police, the Court gave the most extensive explanation of the facts, the arguments and the law.  A Pennsylvania statute guarantees a right to counsel for a witness in a grand jury proceeding.   Shultz argued that he was not adequately represented when Baldwin represented him only as an agent of the university.  He also argued that she did not adequately represent him as an individual or adequately advise him of his right against self-incrimination, a privilege not available to a corporation. While he admitted that an attorney could limit her representation, he argued that the attorney must obtain informed consent and that she had not discussed those limitations with him or obtained his informed consent to a waiver of the attorney-client privilege.

While the Court agreed that Baldwin could have limited the scope of her representation, it said that her “after-the-fact justifications for her own testimony were not expressed on the record prior to Schultz’s testimony, nor is there sufficient evidence that she properly advised Schultz of the limits of her representation.  Simply stating that she could reveal communications to the Penn State Board of Trustees and was general counsel to the University was decidedly inadequate.”

“As our Rules of Professional Conduct illustrate,” the Court wrote, “communications between a putative client and corporate counsel are generally privileged prior to counsel informing the individual of the distinction between representing the individual as an agent of the corporation and representing the person in his or her personal capacity.  When corporate counsel clarifies the potential inherent conflict of interest in representing the corporation and an individual and explains that the attorney may divulge the communications between that person and the attorney because they do not represent the individual, the individual may then make a knowing, intelligent, and voluntary decision whether to continue communicating with corporate counsel.  This is all the more essential where the purpose of the individual seeking advice relates to an appearance and testimony before a criminal investigating grand jury.”

“Absent a privilege existing for preliminary communications, the putative client cannot have full and frank discussions with the attorney in order to determine whether it would be appropriate for that lawyer to represent him or her in an individual capacity.  Furthermore, the attorney might be unable to make a determination as to whether he or she could represent that individual personally if the putative client believes full disclosure will not be kept confidential.”

The Court found that “Schultz’s statutory right to counsel during his grand jury testimony was infringed.”   It “left Schultz constructively without personal counsel for purposes of his grand jury appearance….  We find that a putative client must be made expressly aware of that fact.”

Without Baldwin having adequately advised Schultz of those distinctions and giving him appropriate warnings, “we conclude that all the communications between Schultz and Ms. Baldwin were protected by the attorney-client privilege” and that she had breached that privilege by testifying before the grand jury with respect to those communications.

After a review of prior cases, the Court held that the charges resulting from Baldwin’s testimony should be dismissed.

YOU NEED TO KNOW

A short article on these cases does not do justice to the intricacies of the legal issues involved.  But it is clear that an attorney for an organization has a separate interest from an attorney for the individual employee. The organization may want to disassociate itself from the conduct of the employee and wherever there may be such an issue the individual should seriously consider obtaining personal counsel.  It is the obligation of counsel for the organization to make that issue clear to the employee.