by Geoff Rushton

Former Penn State general counsel Cynthia Baldwin faces a hearing before the Pennsylvania Disciplinary Board in May over her handling of testimony by former university administrators during the Jerry Sandusky investigation.

The Office of Disciplinary Counsel filed a petition for discipline in November alleging four violations of professional rules of conduct and that she had led former President Graham Spanier, Athletic Director Tim Curley and Vice President Gary Schultz to believe she was representing them personally when they appeared before a grand jury.

Baldwin’s response to the petition, filed in January, denied any misconduct and asked for the allegations to be dismissed.

The hearing is scheduled for May 22 and 23.

Disciplinary counsel Samuel Napoli’s petition charges that Baldwin violated rules of conduct requiring attorneys to provide competent representation their clients; to not reveal information relating to representation of a client; to not represent a client if it involves a concurrent conflict of interest; and to not engage in conduct that is prejudicial to the administration of justice.

Baldwin, a former state Supreme Court justice and former chair of the Penn State Board of Trustees, was the university’s chief legal officer and general counsel when she became aware in December 2010 that a grand jury was investigating Sandusky for child sexual abuse and that a part of the matter involved Sandusky’s conduct while employed at Penn State.

On Jan. 3, 2011, Baldwin accepted service of subpoenas for Curley, Schultz and former football coach Joe Paterno to testify before the investigating grand jury later that month, as well as a subpoena for documents created after 1997 related to Sandusky.

The petition says she told each man that she would appear with them before the grand jury and that she did not inform them that it might be advisable to assert their Fifth Amendment rights against self-incrimination.

Baldwin knew or should have known that the interests of Penn State might be adverse to theirs and that her representation of them could be limited by her concurrent representation of the university, Napoli wrote.

Baldwin, however, says Paterno had already retained separate counsel and she advised Curley and Schultz they could do the same, but that on Spanier’s directive they both asked her to accompany them. Her response states that she never informed any of the men that she would appear with them as their individual counsel.

She also says that she had no reason to believe at the time that Curley or Schultz would have any criminal culpability and that she was advised they were only appearing as witnesses, not as subjects of investigation. Baldwin also claims she told Curley and Schultz that nothing they told her was confidential from Penn State because she represented the university

When they appeared before the grand jury, both Curley and Schultz identified Baldwin as their counsel and Baldwin did not state otherwise, Napoli wrote. Baldwin, however, responded that she indicated in the court’s log and told the supervising judge that she represented Penn State. The judge and deputy attorneys general allowed her be present for the testimony knowing she represented Penn State and was their as counsel for Curley and Schultz in their capacities as agents of the university.

But disciplinary counsel says judicial rules prohibit anyone other than counsel for witnesses from being present for grand jury testimony, with some exceptions, none of which would have applied to Baldwin.

When Spanier was subpoenaed to testify in April 2011, the same situation played out.

In her own grand jury testimony on Oct. 26, 2012, Baldwin denied representing Curley, Schultz or Spanier as individuals and said “there was no doubt” she was representing Penn State.

Curley, Schultz and Spanier were all charged with perjury, conspiracy to commit perjury, conspiracy to obstruct justice and failure to report child abuse, based in part on their own testimony and Baldwin’s contrary testimony, Napoli wrote.

In 2016, the Pennsylvania Supreme Court dismissed all charges related to alleged false statements by Curley, Schultz and Spanier because they “were effectively denied counsel for their testimony before the Investigating Grand Jury,” the petition states. The court also found it improper that Baldwin testified to the grand jury about her conversations with the three administrators.

Baldwin countered that former Dauphin County Judge Todd Hoover, who was fact-finder for the matter, held that her conduct complied with professional rules.

Curley and Schultz both pleaded guilty to misdemeanor counts of endangering the welfare of a child in March 2017 and were later sentenced to six and seven months in county jail, respectively, followed by probation. Both completed their incarceration last year.

Spanier went to trial and was found guilty on the same charge as Curley and Schultz and is appealing. He was found not guilty on felony charges of conspiracy and child endangerment.

Along with denying each conduct violation, Baldwin’s response also noted that she has no previous disciplinary action against her and “has had a long, honorable and distinguished career in law.”

Baldwin, a Penn State alumna, served as the university’s first in-house general counsel from 2010 to 2012.