Commonwealth v. Schultz
133 A.3d 294
Pa. Super. Ct.2016Background
- Gary Schultz, former Penn State VP, subpoenaed to testify before an investigating grand jury about allegations against Jerry Sandusky; Penn State GC Cynthia Baldwin accepted service and agreed to attend with him.
- Baldwin met once with Schultz pre-testimony, did not advise him of his Fifth Amendment rights, did not clearly explain whether she represented him personally or only as Penn State’s counsel, and did not give Upjohn-style warnings or obtain informed consent to limited representation.
- Baldwin sat beside Schultz during his grand jury testimony on Jan. 12, 2011; later Baldwin testified before the grand jury about her communications with Schultz, and that testimony helped produce obstruction, conspiracy, and additional charges against Schultz.
- Schultz invoked attorney-client privilege; Penn State refused to waive privilege for communications between Baldwin and Schultz; Schultz moved to quash and to preclude Baldwin’s testimony as privileged and to suppress his grand jury testimony as deprived of counsel.
- The trial court held Baldwin represented Schultz only as a Penn State agent and that no privilege barred her testimony; the Superior Court reversed, holding Schultz was constructively denied personal counsel, Baldwin’s communications with Schultz were privileged, Baldwin incompetent to testify about them, and quashed perjury, obstruction, and conspiracy counts.
Issues
| Issue | Plaintiff's Argument (Schultz) | Defendant's Argument (Commonwealth/Penn State) | Held |
|---|---|---|---|
| Whether the test for who is “represented” at a grand jury is the witness’s reasonable belief | Schultz: Representation should be judged by the witness’s reasonable belief; Baldwin created the impression she was his personal counsel | Commonwealth: Baldwin represented Penn State (agency only); Bevill and similar authority allow corporate counsel to represent the organization and disclose corporate communications | Held: Mrozek four‑part test governs client status; Schultz reasonably believed Baldwin represented him and communications met Mrozek, so privilege attached |
| Whether agency (corporate) representation satisfies the statutory right to counsel in 42 Pa.C.S. § 4549(c) | Schultz: Statutory right to counsel at grand jury implies effective, personal counsel protecting self-incrimination; agency representation without informed consent is inadequate | Commonwealth: An attorney may represent an organization and accompany an employee as corporate counsel; no conflict existed | Held: Agency representation without informed, express limitation deprived Schultz of effective personal counsel (constructive denial) |
| Whether Baldwin’s testimony violated attorney-client privilege | Schultz: Pre-testimony communications were confidential attorney-client communications; Penn State declined to waive privilege as to Baldwin–Schultz communications | Commonwealth: Baldwin only represented Penn State; thus no individual privilege to block her testimony | Held: Baldwin’s communications with Schultz were privileged and she breached the privilege by testifying; she is incompetent to testify about those communications absent waiver |
| Remedy for breach and denial of counsel — dismissal/quash of charges | Schultz: Quash charges premised on Baldwin’s testimony and suppress testimony from Jan. 12, 2011 | Commonwealth: Trial court had refused quash and permitted Baldwin’s testimony | Held: Quashed perjury, obstruction of justice, and related conspiracy counts because privileged or constitutionally infirm testimony improperly influenced grand jury presentments |
Key Cases Cited
- In re Thirty-Third Statewide Investigating Grand Jury, 86 A.3d 204 (Pa. 2014) (discusses attorney-client privilege and interlocutory review)
- Commonwealth v. Harris, 32 A.3d 243 (Pa. 2011) (privilege review and collateral order doctrine)
- Upjohn Co. v. United States, 449 U.S. 383 (1981) (scope of corporate attorney-client privilege and Upjohn warnings)
- Bevill, Bresler & Schulman Asset Mgmt. Corp. v. Fitzpatrick, 805 F.2d 120 (3d Cir. 1986) (test for individual privilege vs. corporate waiver)
- Commonwealth v. McCloskey, 277 A.2d 764 (Pa. 1971) (grand jury counsel and right against self-incrimination; remedy of quash where testimony constitutionally infirm)
- State v. Wong, 97 Haw. 512 (Haw. 2002) (court must resolve privilege before eliciting potentially privileged attorney testimony; quash if improper testimony taints presentment)