The Pennsylvania Office of Disciplinary Counsel has asked the state Disciplinary Board to recommend a public censure for former Deputy Attorney General Frank Fina for alleged improper questioning of Penn State’s former general counsel during the investigation of serial child molester Jerry Sandusky and several university administrators.
The attorney for the ODC made the argument Monday before a three-member panel of the Disciplinary Board, contending that Fina broke a disciplinary rule prohibiting attorneys from subpoenaing other lawyers to testify about their clients without first obtaining judicial approval.
Specifically, disciplinary counsel argued that Fina misled grand jury Judge Barry Feudale in the hopes of gaining the judge’s approval to question former Pennsylvania State University general counsel Cynthia Baldwin.
“He stood on his head to convince Judge Feudale, and then he turned around and questioned her about her clients,” ODC attorney Amelia C. Kittredge said, adding that she wanted the board to recommend a public censure for the alleged conduct.
Fina’s attorney, Dennis McAndrews, however, said the board failed to provide any evidence to back up its claims, and that Fina obtained judicial approval twice before questioning Baldwin.
“Any one of us is at risk if this is what it takes to put your professional license and career in jeopardy,” McAndrews said.
The ODC’s request comes nearly four months after a three-member hearing committee of the Disciplinary Board recommended that Fina not face any charges over the allegedly improper conduct.
Fina became well-known for handling the case against convicted child molester Jerry Sandusky, and he also helped build the case against three Penn State officials who were later convicted of child endangerment charges in connection with Sandusky’s conduct.
The disciplinary charges against Fina stem from an October 2012 hearing into whether state prosecutors could call Baldwin to testify before an investigating grand jury. Baldwin had appeared before the investigating grand jury when the former university officials, Tim Curley, Gary Schultz and Graham Spanier, had testified.
The matter was the subject of a contentious hearing before the Disciplinary Board’s three-member hearing committee in June. The hearing included several hostile exchanges between attorneys and a witness, and one of Fina’s lawyers saying that a statement made by disciplinary counsel was “defamatory and scandalous.”
The hearing committee ultimately recommended in January that Fina not face any discipline over the alleged conduct, finding instead that the ODC failed to prove that Fina had issued the subpoena seeking Baldwin’s testimony.
“The subpoena at issue does not bear respondent’s name as the requesting deputy attorney general, but that of his superior, Bruce Beemer. The ODC did not offer any evidence that respondent issued the subpoena to Ms. Baldwin or even caused it to be issued,” the hearing committee’s report said.
Monday’s proceedings were before a Disciplinary Board panel that consisted of James Haggerty of Haggerty, Goldberg, Schleifer & Kupersmith, Martson Law Offices attorney David Fitzsimons and Tioga County Judge Robert Repard. Following the hearing Monday, the Disciplinary Board should make its final recommendation to the Supreme Court. It will be up to the justices to decide what disciplinary measures Fina should ultimately face.
Before the panel Monday, McAndrews said the fact that a subpoena was issued requesting Baldwin’s testimony and the fact that a hearing took place before Feudale regarding what questions Fina would ask meant he could not be found to have violated the disciplinary rules. But Haggerty and Fitzsimons focused several questions on what representations Fina made to Feudale during the hearing.
McAndrews responded that Baldwin agreed to waive any potential privilege, and that Fina agreed not to question Baldwin about how Spanier, Schultz or Curley prepared to come before the grand jury—a promise McAndrew said Fina kept.
Fitzsimons, however, noted that the Pennsylvania Superior Court came to a different conclusion in its 2016 decision that dismissed several criminal charges against the ex-Penn State administrators due to conduct that occurred during the grand jury proceedings.