Page 30 - December 2019 Bar Journal

COLUMNETHICS PERSPECTIVE

COLLATERAL DAMAGE

LAWYERS MIRED IN PENN STATE

SANDUSKY SCANDAL

Brian F. Toohey

’m the proud father of five grown Fina first. He prosecuted Sandusky and them to escape prosecution. Board Report
children. That tells you I have endured helped investigate the case against the & Recommendations, Office of Disciplinary
a slew of college campus visits. Most three executives. His alleged misconduct Counsel v. Fina, supra, June 6, 2019 at 27, 35.
memorable was Penn State. Daughter arose out of seeking a grand jury subpoena An Ohio prosecutor would likely be in
IMimi and I learned a lot about Joe for Ms. Baldwin. Despite a Board Panel’s a similar fix. No Rule 3.10 here, but we
Paterno and Nitany Lion football. earlier recommendation that the charges have Rule 3.8: Special Responsibilities of a
Shortly after our visit, Jerry Sandusky’s child be dismissed, the full Board wants him Prosecutor. Subpoenas to lawyers in criminal
molestation charges and Penn State’s decade- suspended for a year and a day. That extra proceedings issue only when a prosecutor
long cover-up erupted. Joe Paterno became day creates additional hoops to jump through “reasonably believes” the information sought
“Joe Who?”, and Mimi’s application list shrank before being reinstated. The Board says Fina is “not protected from disclosure by any
by one. misled the judge who issued Ms. Baldwin’s applicable privilege.” ORPC 3.8 (e) (1).
Sandusky was recently back in the news. An subpoena by promising not to delve into We learn early in our careers that there
appellate court concluded that the minimum conversations with her flesh and blood clients are two sides to every story. Fina’s defense
piece of his 30 to 60 year sentence on 45 counts – President Spanier, Vice-President Schultz counsel describes Fina’s questions as
of child molestation had been miscalculated. and Athletic Director Curley. Penn State “carefully circumscribed” and focusing on
His resentencing probably won’t make much obviously could not testify, but its emails non-privileged communications. He labels
difference; Sandusky turns 76 in January 2020. spoke loudly, especially the ones following the Board’s decision “unprecedented,” and
Joe Paterno is dead. Three former Penn a 2001 report of Sandusky showering naked inconsistent with “five trial court opinions”
State executives (president, vice-president with a child visitor. Anyway, Disciplinary finding Fina satisfied his ethical obligations.
and athletic director), came away relatively Counsel alleged Fina violated 204 Pa. Code Law360, (June 6, 2019).
unscathed, compared to what might have Rule 3.10, requiring prosecutors to obtain What about Ms. Baldwin?
happened. More serious charges were advance approval before compelling “… A former Pennsylvania Supreme Justice
thrown out due to alleged misconduct by the attorney/witness to provide evidence who became Penn State’s General Counsel,
two prominent lawyers with significant roles concerning a person who is or has been Baldwin stands accused of numerous ethical
in the 2012 investigation that preceded the represented by the attorney/witness.” violations — competency (1.1), disclosure of
executives’ indictments. Comment (1) to the rule says the court confidences (1.6), conflicts of interest (1.7)
The lawyers still dealing with the disaster must conclude, after hearing, that “…the and misconduct (8.4). Her mistake was not
are former Deputy Attorney General Frank information sought is not protected…by thinking twice before representing multiple
Fina and former Penn State General Counsel the attorney-client privilege or the work clients when the storm hit Happy Valley.
Cynthia Baldwin. product doctrine.” Good general counsels (and good lawyers
Pennsylvania’s Supreme Court will soon The Board concluded: representing organizations) frequently give
rule on their disciplinary charges. You can find Respondent was successful in convincing a version of this speech to already nervous
the cases at Office of Disciplinary Counsel v. the court that a hearing was not necessary. members of management: “I represent the
Fina, 166 DB 2017 Disciplinary Board of the Respondent then proceeded to do exactly organization, not individual members of
Supreme Court of Pennsylvania and Office of what he had represented ... he would not do the organization.”
Disciplinary Counsel v. Cynthia A. Baldwin, ... Respondent turned Ms. Baldwin into a Baldwin met with the three individuals
2587 DD3 Pennsylvania Supreme Court. Don witness for the prosecution against her clients without warning them she was not their
your Pennsylvania Supreme Court Justice ... Respondent’s misconduct ultimately lawyer, met with Fina, accompanied her
costume and decide how you would rule on resulted in serious criminal charges being clients to the grand jury, and testified before
their not-so-hypothetical cases. quashed against three individuals, allowing the grand jury.

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