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Defense Lawyers for PSU Administrators Claim Privilege Prohibits Testimony

THe criminal defense lawyers for former Penn State Administrators Tim Curley and Gary Schultz are trying to prohibit former General Counsel for Penn State, Attorney Cynthia Baldwin, from testifying against them in their upcoming preliminary hearings.  The criminal defense lawyers claim that Curley and Schultz believed that Baldwin was  representing them when they appeared before the grandy jury to testify in the sex abuse scandal involving Jerry Sandusky.  In believing that Baldwin was their attorney, Curley and Schultz believed that any statements provided to Baldwin were made under the protections of attorney-client privilege. Baldwin rejects the notion that she was the attorney for either or the men and instead claims that she was the attorney for Penn State University and not for the former administrators.  Baldwin has already provided testimony to the grand jury about her conversations with Curley and Schultz, but it is not known whether or not she asserted attorney-client privilege at the proceeding.  It is possible that she asserted the privilege but was still ordered by the presiding judge to testify, but it is also possible that she testified freely under the belief that no such privilege existed as Curley and Schultz were not her clients.

Attorney-Client Privilege

The attorney-client privilege generally prohibits an attorney from disclosing information provided to the attorney during discussions with a client. The purpose of the privilege or protection is to encourage the client to fully disclose all details of an incident to the attorney without fear that the attorney will disclose the confidential information to any other person. The attorney needs full disclosure from the client in order to provide the most effective representation.

Pennsylvania Rule of Professional Conduct 1.6 discusses the authority of an attorney to breach attorney-client privilege, and the comments to the rule note that a "fundamental principle in the client-lawyer relationship is that, in the absence of the client's informed consent, the lawyer must not reveal information relating to the representation." There are limitations to the attorney-client privilege. For example, a lawyer is authorized to break attorney-client privilege to prevent a reasonably certain death or substantial body harm.  Therefore, if a client tells an attorney that the client is about to kill his estranged wife, the attorney is permitted to breach client confidentiality and contact the police because death is reasonably certain to occur.  While exceptions to the attorney-client privilege do exist, they are very limited exceptions and thereby ensure that most communications between an attorney and a client remain confidential.  When in doubt, most attorneys will not breach confidentiality unless ordered to do so by a judge.

Were the Penn State Administrators "Clients"?

Curley and Schultz are claiming that they believed that Baldwin was representing them during the grand jury proceedings, so Baldwin, as their former defense attorney, should be prohibited by attorney-client privilege from providing testimony against her former clients. To the extent that Baldwin claims that she represented Penn State at the grand jury proceedings and not the Penn State administrators in an indvidiual capacity, I question how she could even be present. Grand jury proceedings are generally relatively secret

proceedings. Defense attorneys for witnesses are permitted to be present, but, if Baldwin was not the attorney for the men but was instead a Penn State attorney, then why was she there.  Baldwin's claim is also undermined by the fact that Curley and Scultz expressly claimed that Baldwin was their defense attorney at the grand jury proceeding, and Baldwin did nothing to inform Curley, Schultz, or anyone else that she was representing Penn State and not the men.  Some people have also questioned whether she was representing both Penn State and the administrators, in which case she may have violated ethical rules related to representing clients that have conflicting interests.

This is an interesting issue to watch during the pending prosecution of Curley and Schultz, and I expect that former Penn State President Graham Spanier's criminal defense attorney will file a similar motion. I wonder if the criminal judge will find that Curley and Schultz were clients of Baldwin, so communications between the clients and their attorney cannot be divulged.  I also wonder if Baldwin, a very respected attorney, may face a disciplinary investigation for representing clients with conflicting interests. As a State College criminal defense lawyer and Penn State alumnus, I am very interested in watching how this ongoing drama is resolved by the courts.

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