225 A.3d 817
Pa.2020Background
- Cynthia A. Baldwin served as Penn State's Vice‑President and General Counsel (2010–2012) and accompanied three administrators (Timothy Curley, Gary Schultz, Graham Spanier) to testify before a statewide investigating grand jury probing Jerry Sandusky.
- The grand jury served Penn State with a subpoena duces tecum for documents and individually subpoenaed Curley, Schultz, and Spanier for testimony; Baldwin accepted service and attended the witnesses' appearances.
- Baldwin gave so‑called Upjohn warnings but did not clearly limit her role on the record; each administrator identified her as his counsel while testifying and Baldwin did not correct that identification.
- Baldwin conducted minimal preparation, failed to direct Penn State’s established IT/SOS unit to search electronic records, and later testified before the grand jury disclosing confidential communications from the administrators.
- The Superior Court later quashed multiple criminal counts against the administrators because Baldwin’s testimony breached privilege and related competence issues; Disciplinary Board found violations of Pa.R.P.C. 1.1, 1.6, 1.7 and 8.4(d) and recommended public censure.
- The Pennsylvania Supreme Court (majority) held Baldwin violated Rules 1.1, 1.6, 1.7 and 8.4(d) and imposed a public reprimand (administered by the Disciplinary Board) and ordered costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Nature of representation (who Baldwin represented) | ODC: Baldwin acted as personal counsel to Curley, Schultz, Spanier when she accompanied them and therefore owed them individual duties | Baldwin: she only represented Penn State (corporate counsel); Upjohn warnings limited any individual representation | Court: Baldwin represented the individuals personally; statutory and procedural rules (Pa.R.Crim.P. 231, 42 Pa.C.S. §4549) and on‑record identifications show personal representation |
| Competence (Pa.R.P.C. 1.1) | ODC: Baldwin lacked grand‑jury/criminal experience, did not prepare clients, and failed to investigate ESI and documents | Baldwin: relied on clients’ statements and thought there was insufficient time/authority to do more | Held: Baldwin was incompetent here—failed to exercise necessary legal knowledge, skill, preparation, and investigation |
| Conflicts (Pa.R.P.C. 1.7) | ODC: concurrent representation of Penn State and individual admins created significant risks and actual conflicts; no informed consents | Baldwin: believed clients’ interests aligned and Upjohn warnings cleared conflicts | Held: Baldwin violated Rule 1.7—she should have recognized/avoided conflicts or obtained informed consent after full investigation |
| Confidentiality (Pa.R.P.C. 1.6) | ODC: Baldwin disclosed confidential client communications in grand jury testimony without informed consent or a valid exception | Baldwin: waiver, crime–fraud exceptions, or Rule 1.6(c) defenses justified disclosure | Held: Baldwin violated Rule 1.6—no valid waiver or narrow Rule 1.6(c) justification supported her disclosures |
| Prejudicial conduct (Pa.R.P.C. 8.4(d)) | ODC: Baldwin’s combined failures and disclosures prejudiced administration of justice and led to quashed charges | Baldwin: discipline unwarranted or minimal given lack of intent and public interest factors | Held: Baldwin’s misconduct prejudiced the administration of justice in violation of 8.4(d); discipline warranted (public reprimand) |
Key Cases Cited
- In re Groban’s Petition, 352 U.S. 330 (U.S. 1957) (recognizing grand‑jury witness’s privilege and right to counsel)
- Commonwealth v. McCloskey, 277 A.2d 764 (Pa. 1971) (grand‑jury witnesses must be warned of right to counsel and self‑incrimination protections)
- Upjohn Co. v. United States, 449 U.S. 383 (U.S. 1981) (framework for corporate attorney‑client privilege in internal investigations)
- Bevill, Bresler & Schulman Asset Mgmt. Corp., 805 F.2d 120 (3d Cir. 1986) (Third Circuit test for when corporate officials can claim personal privilege)
- Pirillo v. Takiff, 341 A.2d 896 (Pa. 1975) (disallowing multiple representation of grand‑jury witnesses where individual interests conflict)
- In re Philadelphia Investigating Grand Jury XII, 605 A.2d 318 (Pa. 1992) (multiple representation inappropriate when witnesses are potential defendants whose testimony may incriminate others)
- BouSamra v. Excela Health, 210 A.3d 967 (Pa. 2019) (discussion of waiver of attorney‑client privilege in civil discovery context)
- United States v. Zolin, 491 U.S. 554 (U.S. 1989) (limitations on using crime‑fraud exception to pierce privilege)