Due to issues concerning attorney-client privilege, Pennsylvania judges postponed a preliminary hearing and a trial in the Penn State sexual abuse cover-up cases. The criminal trial of Penn State’s former vice president Gary Schultz and former athletic director Tim Curley was scheduled to begin next month. They are charged with perjury and failure to report suspected child abuse. There was also supposed to be a preliminary hearing this week in a separate case against Schultz, Curley, and former Penn State president Graham Spanier in which they are charged with endangering the welfare of children, criminal conspiracy, and obstruction of justice.
Cynthia Baldwin, Penn State’s former general counsel, would likely be a key prosecution witness at these proceedings. She already gave damaging testimony against Schultz, Curley, and Spanier when she testified before the grand jury, and presumably she would do so again in the current criminal proceedings. The defendants, however, have filed motions to suppress Baldwin’s grand jury testimony and to preclude her from testifying in any future proceeding on the grounds that she previously represented them, they never waived the attorney-client privilege, and she never should have disclosed – nor can she continue to disclose – the information that they told her in confidence. According to the defendants, Baldwin represented them when they testified before the grand jury in 2011. Baldwin’s position is that she represented the university, not Schultz, Curley, or Spanier individually. The prosecution, though, recently conceded that Baldwin was representing the three individuals. Nonetheless, says the prosecution, Baldwin’s testimony will not prevent the defendants from having a fair trial.
These cases illustrate a major issue that can arise when lawyers represent organizations. Both ABA Model Rule 1.13 and Rule 1.13 of the Pennsylvania Rules of Professional Conduct clearly state,
A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.
A lawyer is obligated to make clear to the constituents that the client is the organization, not the constituents themselves. The lawyer’s legal advice is supposed to be for the organization, not the individuals. The attorney-client privilege, which belongs to the organization, can be waived by the organization.
The “who is the client?” question presented here could have been easier to answer (the answer being, Penn State) if the grand jury record didn’t indicate that Baldwin was identified as the defendants’ lawyer, and if the prosecution wasn’t now conceding that Baldwin was the defendants’ lawyer. But the grand jury record does, and the prosecution is. So the waters are muddied. If the judges decide that Baldwin was in fact representing the defendants and therefore cannot reveal their confidences, it will be a big blow to the prosecution’s case. Regardless of how the judges rule, it is a critical issue in the cases so expect appeals.