Ever since former Penn State University assistant football coach Jerry Sandusky was charged in November 2011 with sexually molesting young boys, the school has remained a lightning rod for controversy, and after the recent sanctions imposed by the NCAA, some wonder whether the school’s once-revered football program will survive. Regardless of where you stand on the university’s handling of the incident, one thing is clear: much could have been done to avoid it.
While tragic and appalling, we can look at incidents like what occurred at Penn State and hopefully draw some valuable lessons to teach us how we, as young lawyers, can better ourselves as professionals in the difficult and challenging circumstances we face in our own daily practices. Although most of us will hopefully never be confronted with the horrifying conduct that went on at Penn State, we can draw three simple lessons in hindsight that we hope can guide us in our decision-making moving forward.
Communicate and Stay Informed
At Penn State, the lines of communication were strung through a political minefield traversed by all those involved, from the men who swept the hallways all the way up to former President Graham Spanier. Many blame those who witnessed the abuse for not reporting it to the proper authorities; others laud those who did report it, and criticize the handling of the information by those in a position of authority. The finger-pointing at Penn State likely will never end, and other than the Freeh report, we will likely be without any specific answers as to where and in what respects the university ultimately failed. What we can say, however, is that it appears those in charge of the handling of this incident seriously failed to communicate.
Transparency in our work facilitates the most effective representation of our clients, and furthers our ability to consider the thoughts and opinions of others as we move toward a common goal. Moreover, transparency and communication open our minds to thoughts and concerns that we may not initially be aware of, or, as in the case of Penn State, that we would otherwise rather ignore. Collaborating with our colleagues and clients on issues helps us to discover new and fresh ideas, and avoid inadvertently falling into the status quo. For instance, when you receive a new case, conduct a “roundtable” where you can share the facts of the matter with colleagues and discuss the potential issues that may arise; doing this will aid in developing the appropriate strategy for the handling of your new case.
The point of open communication is to foster a spirit of discussion and ideas and not simply to come to one inexorable conclusion. At Penn State, the individuals entrusted with overseeing the university were made aware of an issue with Sandusky, discussed a variety of ways to address it, but never appropriately followed up on the matter. In fact, Sandusky’s continued presence on the Penn State campus for almost a decade after the initial communications regarding the allegations against him demonstrates that the few individuals at Penn State who were aware of the allegations failed to monitor or follow up on Sandusky’s behavior. As attorneys, our duty to remain informed extends far beyond our initial receipt of a new matter. Staying informed requires appropriate follow-up, which, in turn, demands sustained awareness of the particulars of each case we are handling. Some practical tips to achieve this include keeping a calendar of scheduled events and anticipated tasks, which should facilitate better organization and compel us to stay up to date on our assignments. For instance, calendaring a report to a client every 90 days will recall the matter to our attention and trigger any necessary follow-up. Making a “to-do” list may seem academic, but its function may help us to prioritize and finish the tasks that are expected of us.
The most common defense we have heard from those involved at Penn State is that they were unaware of what was occurring. As lawyers, we all must remember our obligations not only to remain informed ourselves, but also to keep our colleagues and our clients informed, and the importance of open communication to this priority.
Weigh the Potential Consequences of Actions
It is important to recognize and understand the drastic consequences that can result from our actions as advocates, and that a decision seemingly made for the betterment of one cause can irreparably damage another. A few individuals aware of the allegations against Sandusky were put in the position of potentially exposing one of their own or dealing with the issue internally among a small group that felt they had the authority and judgment necessary to handle it. Fixated on the import of their task and the weight of their authority, these men failed to see or otherwise ignored the horrifying acts occurring on their watch for, it seems, what they believed to be the betterment of the university and the Penn State brand. As lawyers, we take an oath to represent those in need of representation with fidelity, to protect those who call for protection and to fight for those who cannot fight for themselves. When advocating on behalf of a client, we can sometimes find ourselves so rooted in our own adopted causes that we lose sight of the bigger picture and the consequences that may result from the actions we take to further our causes. But we have a duty to protect those who cannot protect themselves, and our professional responsibilities require that we render sound and just representation to our clients and maintain candor with the court. As young lawyers, we may be confronted with circumstances that require us to call upon our own moral sensibilities and ethical obligations. In these trying situations, it is important that we trust our judgment and uphold the moral and professional standards that we collectively represent as officers of the court.
The lesson to be learned here is very simple. Our duties to our clients should not render us blind to acts that, if not for our role as interested advocates, would be so obviously against our own civility. While there will be times in all of our careers that we are asked to adopt a cause we may not ourselves believe in, we must be cautious not to ignore our ability to think and act rationally. The individuals aware of the allegations against Sandusky assumed a willful ignorance and, in turn, sacrificed their own integrity and that of the university for what they believed to be the good of the institution.
As attorneys, we owe a duty to our clients and that duty is best fulfilled when we incorporate and appropriately consider all possible consequences that could result from a given decision. Though all attorneys, if given the choice, would opt to deliver only favorable news to their clients, advising clients of the risks associated with the handling of their matters is a critical part of our job. It seems that the few individuals acting on behalf of Penn State failed to completely understand and perhaps did not consider the devastating effects that their decisions would eventually have on the university and, much more importantly, disregarded the effects their actions or inactions could have, ultimately, on innocent children.
Although the consequences of our actions may be far less dramatic than what occurred at Penn State, the same concept applies to our everyday practice. We are responsible for our actions as counsel and, in the end, are accountable for the representative acts we take on behalf of our clients. Because of this, we must thoroughly explore every strategy available to us and develop our own understanding of the possible consequences, independent of those more senior to us. Developing our own understanding of an issue can also help us better negotiate internal politics that could otherwise influence our judgment. Moreover, we further our own understanding of given issues and can better contribute to the representation of our clients.
Speak Up and Reach Out
From the sparse communications that we are aware of, there were several individuals in positions of authority who were aware of certain allegations against Sandusky, yet failed to report those claims to the police, opting instead to handle the issue internally. Their failure to further explore and follow up on these allegations against Sandusky is what has left most of us scratching our heads.
Though we all represent others, we remain individuals sworn to uphold the integrity of our profession, and we must not disregard this obligation for the sake of a professional cause. Perhaps lost in loyalty to the school they represented, the few administrators acting on behalf of the university failed to prevent a sadistic predator from harming helpless victims. While it is perhaps comforting to believe that none of the university’s leaders, campus police or athletic personnel, save for Sandusky himself, would have ever stood for the abuse of innocent children, it seems that individual and collective ethics were obscured by institutional loyalty. As young lawyers, we should learn from the Penn State incident and not make the same mistake. If, by chance, we find ourselves in a situation where we believe the interest of another is seriously threatened, we must call upon our own ethical and moral training to do what we know is right, however difficult that decision may be.
Though we may not have the experience of more senior attorneys, the law is an ever-changing, fluid concept and we cannot afford to rely on practice that may be outdated or in need of improvement. Indeed, our clients rely on us to stay abreast of developments in the law that may influence our handling of their case. Thus, as a practical matter, we must exercise due diligence in furthering our understanding of the law relevant to our practice and making sure it is updated and current.
Convincing a more senior lawyer that his or her understanding of the law is outdated could prove difficult, especially if research uncovers precedent unfavorable to our clients. Regardless, where there is a change in the law or a significant development that may affect our position on an issue, it is imperative that we bring it to the attention of those in charge. Speaking up in such instances requires courage and the understanding that the consequences of our decisions will live with us — and possibly others — forever.
Likely in an attempt to avoid the negative publicity and attendant costs that would have inevitably followed had they reported Sandusky, the administrators at Penn State chose not to speak up, and the consequences of not doing so have proven to be far worse. Ironically, these individuals, responsible for positively shaping the minds of thousands upon thousands of Penn State students, will instead be better remembered for their shortcomings in the handling of this incident. As young lawyers, we should remember the lesson that speaking up and out on difficult issues as they arise, though perhaps painful in the moment, can prevent further consequences from our failure to do so in the future.
YL Editorial Board
Peter Buckley, Chairman
Leigh Ann Buziak
Kristine L. Calalang
Robert W. Stanko
The Editorial Board of Young Lawyer is composed of members of the legal profession. They serve voluntarily and are independent of Young Lawyer. Through their ongoing exchange of views, members of the board attempt to develop consensus on issues of importance to the bench, bar and public. Members of the legal community are invited to contribute signed op-ed pieces.