Office Of Disciplinary Counsel v. Baldwin

Facts

Allegations were put forward related to Sandusky's repeated sexual abuse of children to a statewide investigating grand jury. The investigation uncovered two instances of abuse that took place on the Penn State campus, one in 1998 and a second in 2001. Both incidents were covered up by the school and local police provided Sandusky cooperated. On December 28, 2010, D received a telephone call from the Office of the Attorney General (OAG) regarding a grand jury investigation of multiple claims of child abuse against Sandusky. The OAG asked D 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. D first met with Curley in connection with his grand jury testimony in Spanier's office. Spanier, in Curley's presence, instructed D 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 D, Curley said that he did not know any lawyers. D and Curley then met privately in D's office. They discussed what she had explained to him at the meeting in Spanier's office and reviewed his recollection of events involving Sandusky. D's sole private conversation with Schultz before his grand jury testimony followed, and by D's account, Schultz's recollections were in line with Curley's. D indicated that '[Schultz] told me the same thing that [Curley] told me, that it had been described as horseplay.' D testified that neither Curley nor Schultz told her that a sex act had taken place between Sandusky and the boy in the shower, 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 D had no knowledge at that time that any such event had taken place.Both Curley and Schultz denied having any documents relating to Sandusky's activities. D determined that their stories were consistent, as they 'told me the same thing.' 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. D accompanied Curley and Schultz to interviews with an OAG representative. She then accompanied each of them to their appearances before the investigating grand jury. On March 22, 2011, OAG investigators interviewed Spanier, who was accompanied by D. On March 24, 2011, a subpoena was issued to Spanier for testimony before the grand jury on April 13, 2011. D interviewed Spanier, found his testimony to be consistent with that of Curley and Schultz (even though their testimony was inconsistent with each other), and thus determined that she could accompany Spanier during his grand jury testimony. On November 7, 2011, the Commonwealth charged Curley and Schultz with one count each of perjury and failure to report suspected child abuse. D advised Curley and Schultz to retain private counsel and, at their request, made arrangements for them to do so. She also advised Spanier to hire private counsel. Newly retained personal counsel for Curley and Schultz notified D 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. D 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. D was served with a subpoena to testify before the grand jury. Counsel for Penn State agreed to waive any attorney-client privileges, except to the extent that such privileges existed between D and Curley and/or Schultz. D 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. D also revealed the contents of numerous communications between herself and Curley, Schultz, and Spanier. 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. 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. Curley, Schultz, and Spanier filed motions to preclude D from testifying in the criminal trials. The trial court denied the motions, but the Superior Court reversed and quashed all of the perjury, obstruction of justice, and related conspiracy charges. The Superior Court concluded that D, during her grand jury testimony, had breached the attorney-client privilege. The Superior Court barred D from testifying against Curley, Schultz, or Spanier. Plea bargains were entered 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. D was charged with violations of Rules 1.1, 1.6(a), 1.7(a), and 8.4(d) of our Rules of Professional Conduct. It was determined that D represented Curley, Schultz, and Spanier in a personal capacity during their grand jury testimony. D 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. D did not violate Rule 1.1, as she had provided competent representation of Curley, Schultz, and Spanier. D did not violate RPC 1.6(a), as her testimony before the grand jury fell within exceptions to that rule and did not improperly reveal protected information about her representation of the individuals. Because D had not engaged in misconduct, the Hearing Committee determined that her actions were not prejudicial to the administration of justice, and therefore D had not violated Rule 8.4(d). The Disciplinary Board issued a report reversing the determinations of the Hearing Committee. It concluded that D failed to recognize the multiple conflicts of interest between her clients. It held that D did not exercise the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representations of Curley, Schultz, and Spanier before the grand jury. D further failed to maintain the confidentiality of communications between herself and her clients. It found that D's conduct prejudiced the administration of justice. The Disciplinary Board concluded that public censure, rather than a public reprimand, is the appropriate remedy in this case. 

Issues

Rule of Law

Holding and Decision

Legal Analysis

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