Basic rules: when you represent an organization, you must make it clear to employees who wish to retain you that there is a potential conflict of interest. Further, you cannot breach the attorney-client confidentiality by testifying before a grand jury about conversation had with your clients.
How could the General Counsel of Penn State, a former Justice of the Pennsylvania Supreme Court, have crossed these lines?
During the investigation into the repeated sexual abuse and cover up of those allegations againstJerry Sandusky, a former assistant football coach at Penn State, the GC took on the representation of Penn State’s President, the Athletic Director and the former Senior Vice-President for Finance and Business as the investigation by the Office of the Attorney General turned to a “what did you know and when did you know it” analysis. She accompanied the witnesses to the Grand Jury, prepped them, and when called before the Grand Jury herself, recounted their conversations.
The Court held that the GC violated Pa. RPC 1.1 Competence, 1.6(a) Confidentiality, 1.7 Conflict of Interest: Current Clients and 8.4 (d) Conduct Prejudicial to the Administration of Justice. (NJ RPC cites are equivalent).
Her failure to warn the clients about the potential conflict of interest led to the suppression of statements made before the Grand Jury. Echoing the Disciplinary Board, the Court added that her conduct resulted in charges being quashed against the clients, “ . . . thereby prejudicing the administration of justice.” (An appellate court quashed all perjury, obstruction of justice and related conspiracy charges against the defendants. The President proceeded to trial and was convicted on a remaining count; the other two officials each entered pleas of guilty to one count and testified against him).
The Court considered the high-profile and pressure-filled nature of the case, the GC’s admitted complete unfamiliarity with criminal law, and her previous unblemished record. It weighed those factors against her repeated violations as noted above and ordered a public reprimand, finally bringing a close to this chapter.
Office of Disciplinary Counsel v. Baldwin, No. 2587 Disc. Docket No. 3 (Decided February 19,2020).