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So often when a scandal breaks, the first question the public asks is: Where were the lawyers? At Penn State, the answer seems to be: Not there. Very little is known about the role that Penn State’s general counsel played during the various stages of the university’s sexual abuse crisis—or is playing now. But one thing’s clear: She wasn’t anywhere near Penn State when the allegations first surfaced. Cynthia Baldwin is the first general counsel that Penn State has ever had, hired in January 2010. (Her distinguished career has included many years on the bench, including two years on the Pennsylvania Supreme Court, and past membership on Penn State’s board of trustees.) She may have been hired because a grand jury was investigating whether former football coach Jerry Sandusky used campus facilities to sexually assault boys he met through a charity he founded for underprivileged children. The grand jury investigation that led to Sandusky’s indictment began the year before Baldwin was hired, but she wasn’t available to confirm or deny a connection. The scandal has led to the indictments of athletic director Tim Curley and senior vice president for finance and business, Gary Schultz, for allegedly failing to report their knowledge about an alleged assault in 2002 and lying to a grand jury about it. Last week Penn State’s revered football coach, Joe Paterno, and the university’s president, Graham Spanier, were also fired because they knew about the allegations and, in the eyes of Penn State’s board of trustees, didn’t do enough to intervene. Now a former general counsel has promised to get to the bottom of the mess. Ken Frazier was never a GC at an institution of higher learning, but he was the general counsel of Merck & Co., Inc., where he’s now the CEO. And as a member of Penn State’s board, he was named to lead a special board committee to investigate the scandal. The committee has the power to hire outside lawyers and to release to the pubic its complete findings. “That’s absolutely what we intend to do,” Frazier vowed shortly after he was named to the post. Even though Frazier has promised to move quickly, it will likely be months before a report can be finished. And the commitment to make it public may add to the challenge, says William Lytton, a senior counsel at Dechert who had a long look at the aftermath of a scandal when he was hired as the general counsel of Tyco International after its top managers were indicted in an accounting con. A public report “means you don’t have to worry about privilege issues,” notes Lytton, who early in his career was an assistant U.S. attorney in Philadelphia. But now that the major players in the PSU scandal are all represented by lawyers, he adds, they will probably be advised not to talk. Which will further complicate the process. The questions they need to delve into are all about compliance, he says. “Did you have a good structure that for some reason failed, or a bad structure that wasn’t organized properly?” Or to put it another way: Did the people screw up, or was it the system? Stephen Hirschfeld is working on campuses to help establish clear rules about who receives a report of a possible crime, who investigates it, and who oversees the investigation. Hirschfeld, a founding partner at the law firm Curiale Hirschfeld Kraemer in San Francisco, doesn’t know Penn State’s procedures. But he’s seen plenty of problems when a complaint comes to an athletic department, and the department itself decides whether an investigation is necessary. A lot of schools don’t have processes that obviate conflicts of interest like these. “And that’s what I’m trying to change with my clients,” says Hirschfeld, whose firm represents about 120 private colleges in 40 states, as well as some public colleges. There is already evidence that Penn State failed to follow its own procedures for handling complaints of this sort. And these days, all colleges and universities are required by law to establish and follow procedures when it comes to investigating crime on campus—thanks largely to a couple whose daughter was murdered and the organization they helped found. Security on Campus, Inc. (SOC) is a nonprofit that was started in 1987 after another crime on a Pennsylvania campus. A young woman named Jeanne Clery was murdered in her dorm room at Lehigh University, and her parents helped create a law called the Clery Act that requires institutions of higher learning to report crimes on campus. S. Daniel Carter, SOC’s director of public policy, says his group noticed discrepancies in Penn State’s reporting of forcible sex offenses on campus in 2002. Its official statistic, reported under the law, was zero. But SOC had seen news reports that contradicted that finding. Furthermore, says Carter, Penn State’s own literature says complaints are forwarded to the university police to allow them to determine what statistics need to be reported and whether a campus warning is required. Yet, the grand jury report on the current case makes it clear that the 2002 complaint was never shared with the university police. The U.S. Department of Education, which is empowered to penalize violators of the law, has announced it is investigating, Carter adds. Christine Helwick understands that it’s easy to criticize in retrospect. But in this case, her sympathy is limited. “You can always look back and find things that could have been done differently,” says Helwick, the general counsel of California State University. “But this one was pretty bad.” The takeaway isn’t new, she says. “The lesson we have learned over and over again regarding issues of sexual misconduct is they need to be addressed immediately and very seriously.” A school can’t sit on an allegation for six months, she says, or assume that an apology has made things right. She calls the actions of Penn State’s board last week, in dismissing its coach and president, “enormously sad but appropriate.” That’s what happens when procedures fail. “A lot of people get swept up in the wave.” See also: “Penn State, Paterno, and the Hubris of High-Performers,” CorpCounsel, November 2011.

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