Commonwealth v. Curley
131 A.3d 994
Pa. Super. Ct.2016Background
- Timothy Curley, former Penn State Athletic Director, subpoenaed to testify before the statewide grand jury investigating Jerry Sandusky’s alleged child sexual abuse; he consulted Cynthia Baldwin (Penn State general counsel) before testifying.
- Baldwin told Curley she was Penn State’s general counsel and stated there was "no confidentiality," but she did not advise him of his Fifth Amendment rights or clearly limit/clarify whether she represented him personally.
- Baldwin attended pre-testimony interviews and sat with Curley during his grand jury testimony; she later testified before the grand jury about communications with Curley concerning document searches and responses to a subpoena.
- The grand jury returned later presentments charging Curley with obstruction of justice and related conspiracy counts based in part on Baldwin’s testimony about Curley’s statements that he had no responsive documents.
- Penn State’s new counsel expressly declined to waive the University’s privilege as to communications between Baldwin and Curley; Curley asserted attorney-client privilege. The trial court held no personal privilege attached and allowed Baldwin’s testimony; the Superior Court reversed as to the obstruction/conspiracy counts.
Issues
| Issue | Commonwealth's Argument | Curley’s Argument | Held |
|---|---|---|---|
| Whether attorney-client privilege attached to Curley’s communications with Baldwin (personal capacity) | Baldwin was University counsel and represented Curley only as an agent of Penn State, so no individual privilege protected his communications | Curley argued he sought and received personal legal advice about grand jury testimony; communications were privileged | Held: Communications were privileged; Baldwin was incompetent to testify about Curley’s confidential communications |
| Whether corporate-representation/Upjohn-type principles preclude individual privilege for employee-witnesses | The University’s waiver of privilege allowed disclosure; corporate counsel representing an employee in an agency capacity negates individual privilege for those communications | Curley argued that corporate representation does not automatically destroy an individual privilege, especially where he was not informed Baldwin represented only Penn State | Held: Corporate representation does not automatically eliminate individual privilege; preliminary communications can be privileged absent informed limitation and Penn State did not waive privilege as to Baldwin–Curley communications |
| Whether Baldwin’s grand jury testimony about Curley’s document-related statements was admissible (or breached privilege) | OAG contended its questioning was proper and within scope of permitted inquiry; any privilege issues were waived or within University waiver | Curley contended Baldwin’s testimony revealed confidential communications and breached privilege, tainting obstruction/conspiracy charges | Held: Baldwin’s testimony improperly revealed privileged communications and so Baldwin was incompetent to testify on those communications; obstruction and related conspiracy charges quashed |
Key Cases Cited
- Commonwealth v. Chmiel, 738 A.2d 406 (Pa. 1999) (describing the attorney-client privilege as a fundamental common-law protection)
- In re Thirty-Third Statewide Investigating Grand Jury, 593 A.2d 402 (Pa. 1991) (attorney-client privilege issues in grand jury context; scope and protection of communications)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (scope of corporate attorney-client privilege and treatment of employee communications)
- Commonwealth v. Maguigan, 511 A.2d 1327 (Pa. 1986) (policy rationale for privilege protecting client disclosures to counsel)
- Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120 (3d Cir. 1988) (test for when corporate employee communications may be treated as individually privileged)
- Commonwealth v. Mrozek, 657 A.2d 997 (Pa.Super. 1995) (addressing attorney-client privilege principles in criminal contexts)