ODC, Pet v. Cynthia A. Baldwin

Supreme Court of Pennsylvania
225 A.3d 817 (Pa. 2020) (2020)

ELI5:

Rule of Law:

An attorney violates professional conduct rules by engaging in concurrent representation of a corporate entity and its constituents in a criminal investigation without informed consent regarding conflicts, and violates the duty of confidentiality by revealing client communications to a grand jury when such disclosure does not effectively prevent, mitigate, or rectify the consequences of a client's criminal act.

Facts:

Respondent Cynthia Baldwin served as General Counsel for Penn State University during the investigation into child abuse allegations against former coach Jerry Sandusky.
In late 2010 and early 2011, Baldwin accepted service of subpoenas for Penn State (documents) and three university administrators—Curley, Schultz, and Spanier (testimony)—in connection with a grand jury investigation.
Baldwin met with the three administrators, who denied knowledge of the abuse; relying on their statements without conducting an independent search of university email servers, she decided to represent both the university and the individuals simultaneously.
Baldwin accompanied the administrators to their grand jury appearances, where they identified her as their counsel, and she failed to object or clarify that she was acting solely as corporate counsel.
Although Penn State possessed a massive volume of emails on its servers that implicated the administrators, Baldwin did not utilize the university's IT department to retrieve these documents prior to the administrators' testimony.
Subsequent to the administrators' testimony, Baldwin herself was subpoenaed and testified before the grand jury, revealing the substance of private communications she had with Curley, Schultz, and Spanier, claiming they had lied to her.
Based largely on Baldwin's testimony, the grand jury issued a presentment recommending criminal charges against the administrators.
In the subsequent criminal cases against the administrators, the Superior Court quashed several charges (including perjury and obstruction) specifically because Baldwin's grand jury testimony had breached the attorney-client privilege.

Procedural Posture:

The Office of Disciplinary Counsel (ODC) filed a Petition for Discipline against Respondent charging violations of Rules 1.1, 1.6(a), 1.7(a), and 8.4(d).
The Hearing Committee of the Disciplinary Board conducted an evidentiary hearing.
The Hearing Committee issued a Report and Recommendation concluding Respondent did not violate any rules and recommended the petition be dismissed.
The ODC filed exceptions to the Hearing Committee's report.
The Disciplinary Board reversed the Hearing Committee, finding Respondent violated all charged rules, and recommended public censure.

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Issue:

Did the Respondent violate the Rules of Professional Conduct regarding competence, conflicts of interest, and confidentiality when she simultaneously represented a university and its individual administrators before a grand jury and subsequently testified against those individuals?

Opinions:

Majority - Justice Donohue

Yes, the Respondent engaged in professional misconduct by providing incompetent representation, failing to address conflicts of interest, and improperly revealing client confidences. The Court held that Respondent represented the administrators in their individual capacities, not merely as agents of the university, because the subpoenas were directed to them personally and they had a statutory right to counsel which she fulfilled. Consequently, she violated Rule 1.1 (Competence) by failing to conduct a reasonable investigation—specifically failing to search university emails—before allowing her clients to testify. She violated Rule 1.7 (Conflict of Interest) by representing multiple clients with potentially adverse interests without obtaining informed consent, particularly given the obvious tension between the university's need to cooperate and the individuals' risk of criminal liability. Furthermore, she violated Rule 1.6 (Confidentiality) by revealing privileged communications to the grand jury. The Court rejected her defense that the disclosures were necessary to rectify a crime under Rule 1.6(c)(3), noting that her testimony occurred after the documents had already been produced by others and served only to incriminate her clients rather than prevent or rectify harm. Finally, her conduct was prejudicial to the administration of justice (Rule 8.4(d)) because her breach of privilege caused serious criminal charges against her clients to be quashed.

Analysis:

This decision reinforces the strict duties imposed on corporate counsel when interacting with corporate officers during internal or external investigations. It serves as a stern warning against the 'ostrich approach' to factual investigation; counsel cannot blindly rely on client assertions when objective evidence (like emails) is readily available. The ruling clarifies that Upjohn warnings (corporate Miranda) may not protect an attorney from forming an attorney-client relationship with individuals if the attorney accompanies them to testimony and acts as their counsel. Furthermore, the Court strictly construed the exceptions to Rule 1.6, establishing that an attorney cannot turn on a client and reveal confidences to a grand jury merely because the client lied, unless the disclosure actually prevents or rectifies the misuse of the lawyer's services. The case highlights the severe consequences of ethical breaches, as the attorney's misconduct directly sabotaged the criminal prosecution of her own clients.

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