If three ex-Penn State administrators facing charges stemming from failing to properly deal with reports of child sexual abuse by Jerry Sandusky are found to have appeared before a grand jury without proper advice of counsel, their testimony could be incurably affected and even tossed, several white-collar defense attorneys have said.

Although the attorneys who spoke with the Law Weekly noted that they are not familiar enough with the specifics of the case to say exactly what is likely to occur, several said that if a court determines that the defendants believed they were appearing under the advisement of counsel, when in fact the attorney only represented the university, the testimony could potentially be inadmissible for cross-examination and could even be thrown out as a violation of their due process rights.

For Ellen C. Brotman of Montgomery McCracken Walker & Rhoads, confusion as to whether a testifying party was represented by counsel could arguably constitute violations of the testifying party’s Fifth or Sixth Amendment rights.

“A grand jury can have a defect that nullifies it,” Brotman said. “Could this be that kind of defect? I think it could be.”

David M. Laigaie, of Eckert Seamans Cherin & Mellott, said a lack of clarity could cause a grand jury to be “incurably affected,” and could cause the defendants to seek that the charges be dropped.

“At minimum, it’s problematic,” said Henry E. Hockeimer Jr. of Ballard Spahr. “Whether or not it’s a clear violation, that’s up to the process.”

At issue is the representation of former university President Graham Spanier, Vice President Gary Schultz and former athletic director Tim Curley, all of whom were charged with perjury, obstruction of justice, child endangerment and failure to report in connection with incidents of sexual abuse of minors at the hands of Sandusky, a former Penn State assistant football coach. The three have argued that they believed they were being represented by Penn State’s attorney at the time, Cynthia Baldwin.

Baldwin, a former state Supreme Court justice, accompanied the three into grand jury proceedings in 2011 that were part of the investigation into Sandusky’s activities. Baldwin later testified against the three during 2012 grand jury proceedings.

The defendants are arguing that their legal rights were so badly trampled during grand jury proceedings that the charges should be tossed.

Baldwin’s attorney, Charles De Monaco of Fox Rothschild, however, said his client’s role was clear, and that she properly handled the defendants’ representation both before and after the grand jury proceedings.

“Any suggestion by the defendants and their counsel that Mr. Schultz, Mr. Curley or Dr. Spanier did not understand Justice Baldwin’s role or whom she represented lacks any merit,” he said.

De Monaco cited the reasoning that the presiding grand jury judge, Barry F. Feudale, gave in his opinion from April, in which he held that Baldwin had no conflict of interest.

“The remedy that the defendants are seeking is unprecedented and extraordinary—without any basis in fact or law,” De Monaco said.

What the ‘Client’ Thinks

According to the transcripts of grand jury proceedings from April 13, 2011, before Spanier was brought out to testify regarding his awareness of allegedly reported incidents of sexual assault, Baldwin indicated to the judge that she represented “the university solely.”

However, when Spanier took the stand less than an hour later, he identified Baldwin as his counsel.

In a motion to quash from May, Spanier attorney Elizabeth K. Ainslie of Schnader Harrison Segal & Lewis contended that the charges of perjury, obstruction and conspiracy to commit perjury should be dropped because they depended on testimony that violated the attorney-client privilege and, alternatively, because the testimony was elicited from Spanier when he was deprived of counsel.

According to several attorneys who spoke with the Law Weekly, whatever belief the defendants have regarding their representation will be a weighty factor in the proceedings.

“You need to carefully instruct people that I represent the organization and not you individually,” Laigaie said. “What the [would-be] client thinks … matters. The [would-be] client might be wrong and it could lead to a problem. It’s a very fundamental point.”

Although the nature of an attorney-client relationship is very fact specific, individuals’ beliefs can determine whether their conversations should be privileged, and it could potentially allow individuals to seek safe harbor for their actions, claiming they believed they were acting upon the advice of counsel, attorneys who spoke to the Law Weekly said.

“The argument that Spanier could have is that: ‘This counsel wasn’t representing my interest. I needed counsel to advise me and would need advice about whether I should even testify,’” Hockeimer said, adding that the relationships between general counsel and administrators can be difficult to navigate, especially when a client is subpoenaed to take the stand. “Anytime you have somebody under oath in a criminal proceeding, there are risks.”

William A. DeStefano of Stevens & Lee said the safe harbor argument can be a tough sell to make because it is dependent upon the nature in which the attorney instructed the purported client and how the individual then acted.

“It gets back to harm,” he said. “It is: What would you have done differently [if you had known you were not being represented]? It’s really case specific.”

A Frequent Dilemma

Attorneys who spoke with the Law Weekly agreed that friction between administrators and the entities they oversee occurs frequently, and that general counsel often must advise the administrators that their client is the company and their representation does not extend to the officials individually.

“Once there’s a problem, you are ethically required to advise both entities of potential conflict,” DeStefano said. “Even though it hasn’t ripened quite yet, it might ripen down the road.”

The rules governing an attorney’s conduct and communication with individuals who are not the attorney’s client are outlined in the Model Rules of Professional Conduct. While the code is clear on paper, in practice the roles can become murky, especially for general counsel, who work regularly with and advise the same administrators and company officials for decades.

Several attorneys who spoke with the Law Weekly suggested that in-house counsel should give an Upjohn warning, commonly referred to as a corporate Miranda warning, which is a formal notification given by the lawyer that the representation does not extend to the individual, at the outset of any investigation their company may face.

Attorneys who spoke with the Law Weekly agreed that responsibility to clarify representation for the individual may also extend to prosecutors and judges.

For Brotman, while the onus is on the lawyer to provide clarity, prosecutors and judges who are confused about the role of a counselor also have a duty to provide clarity.

“They have a duty to protect the integrity of the grand jury process, and a duty not to violate his rights, or permit him to testify when he believes he’s being represented and they are aware that his belief is incorrect,” she said.

According to De Monaco, the interests of the university and the administrators aligned when Baldwin accompanied them to the grand jury proceedings. He added that Baldwin further insisted upon and assisted each defendant in retaining his own personal counsel after she became aware that Schultz and Curley would be indicted and after Spanier was fired.

“At the time that Mr. Schultz, Mr. Curley and Dr. Spanier were called to testify before the grand jury, they were called as witnesses, not as targets or subjects of any investigation,” De Monaco said in an emailed statement. “The defendants and their counsel have attempted to shift the focus of these proceedings upon Justice Baldwin in an apparent effort to avoid scrutiny of the very serious charges that have been lodged against them.”

Attorneys with the Attorney General’s Office and the attorneys representing Spanier, Schultz and Curley did not respond to calls for comment.

Max Mitchell can be contacted at 215-557-2354 or Follow him on Twitter @MMitchellTLI. •