As Disciplinary Hearing Opens, Expert Says Baldwin Failed To Properly Represent Ex-Penn State Administrators
A Pennsylvania Disciplinary Board hearing began on Tuesday in Pittsburgh for former Penn State general counsel Cynthia Baldwin, who is accused of violating rules of professional conduct in her representation of former university administrators during the Jerry Sandusky investigation.
Philadelphia attorney David Rudovsky, who was called as a grand jury expert by the Office of Disciplinary Counsel, testified that he believes Baldwin is a competent attorney, but that she failed to provide the necessary warnings to Tim Curley, Gary Schultz and Graham Spanier about potential conflicts of interest, according to the Pittsburgh Post-Gazette.
The Office of Disciplinary Counsel filed a petition for discipline in November alleging four violations of professional rules of conduct by Baldwin 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.
Disciplinary counsel Samuel Napoli said Baldwin violated rules of conduct requiring attorneys to provide competent representation to 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 allegedly violated those rules by her failure to explain potential conflicts of interest then talking to prosecutors and a grand jury about her conversations with the three men.
If the three-person panel hearing the case determines she did violate rules of conduct, she could face discipline ranging from a reprimand to disbarment. The state Supreme Court will ultimately decide whether to accept, reject or modify the panel’s recommendation.
According to PennLive.com, Rudovsky’s testimony focused on attorneys for institutions and how they also work for the leaders of those institutions. He said Baldwin did tell each of the administrators they retain their own attorneys when they were subpoenaed to appear before the investigating grand jury in 2011 and that she told them her work for them on the matter would not be fully protected, since she represented the university as a whole.
But, Rudovsky said, her warnings were “clearly deficient” and she did not obtain the proper waivers from the three men, the Post-Gazette reported.
“This was rife with possible conflicts,” he said.
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 at the time administrators were first approached about the Sandusky investigation. She appeared with Curley, Schultz and Spanier when they testified before the grand jury and each said they believed she was representing them individually.
All three were eventually 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. The charges stemmed from their decision not to take to law enforcement a 2001 report from then-graduate assistant Mike McQueary about seeing Sandusky with a boy in a locker room shower.
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 disciplinary petition stated. The court also found it improper that Baldwin testified to the grand jury about her conversations with the three administrators.
In an opening statement on Tuesday, Baldwin’s attorney, Charles DeMonaco, said that Baldwin acted on advice of counsel herself during the case and was permitted by two judges to testify. He also said the three men lied to her about their knowledge of allegations about Sandusky, PennLive reported.
“They were engaging in a criminal conspiracy of concealment…” DeMonaco said, “and they used Cynthia Baldwin as an instrument of their crime.”
Curley and Schultz both pleaded guilty to misdemeanor counts of endangering the welfare of a child in March 2017. Spanier went to trial and was found guilty on the same charge. He is currently appealing the verdict.
Prosecutors dropped a charge of conspiracy against Curley and Schultz and the jury found Spanier not guilty on a conspiracy count.
Napoli said during his opening statement that the disciplinary case is about Baldwin’s representation of Curley, Schultz and Spanier, not about whether the three men are guilty of any crimes.
Rudovsky was expected to be disciplinary counsel’s only witness. DeMonaco argued that Baldwin was “diligent and competent” in her representation and that there is no complainant and no fact witnesses being called to support the charges against her, the Post-Gazettereported.
The disciplinary hearing will continue on Wednesday. The Post-Gazette reported that Baldwin is expected to call among her witnesses Frank Fina, the former deputy attorney general who was part of the team that led the investigation and prosecution in the Sandusky case.
Fina is facing accusations of professional misconduct stemming from the case as well. The Office of Disciplinary Counsel filed a petition for discipline against him in January, alleging he turned Baldwin “into a witness for the prosecution” when she testified before the grand jury in October 2012 and that his questioning went “impermissibly beyond” the topics he told the supervising judge he would cover.