We have previously discussed the role of former General Counsel Cynthia Baldwin in the disastrous handling of the Sandusky scandal by Penn State. Baldwin is cited in the Freeh Report for her alleged failure to fully informed university officials and her opposition to an independent review that might have protected the university from the scandal and recently imposed heavy penalties against the school. Now former Penn State president Graham Spanier is joining in that criticism, saying that Baldwin failed to hire an experienced law firm during the grand jury probe.
The recently announced NCAA sanctions included Penn State with a $60 million sanction, a four-year football postseason ban and a vacation of all wins dating to 1998.
Spanier said that, as an abused child himself, he would have acted if Baldwin had fully informed him of the allegations.
Had I known then what we now know about Jerry Sandusky, had I received any information about a sexual act in the shower or elsewhere, or had I had some basis for a higher level of suspicion about Sandusky, I would have strongly and immediately intervened. Never would I stand by for a moment to allow a child predator to hurt children. I am personally outraged that any such abusive acts could have occurred in or around Penn State and have considerable pain that it could perhaps have been ended had we known more sooner.
He told trustees in a five-page letter that Baldwin failed to give him key details during a grand jury’s investigation of Jerry Sandusky and that she kept him in the dark despite receiving subpoenas from prosecutors who were interviewing top administrators. He also said that Baldwin failed to prepare him for a grand jury investigation while “much to my surprise (Baldwin) handed over to the judge a thumb drive containing my entire history of emails back to 2004.”
Baldwin is a former state Supreme Court justice who chaired the Penn State Board of Trustees from 2004 to 2006.
Baldwin has not responded and her legal representatives noted that legal ethics obligations compelled her to remain silent. Those obligations usually refer to the continued need to protect the confidentiality of her client. However, when a client attacks an attorney and accuses her of wrongdoing, an attorney is usually allowed to respond.
If Baldwin was trying to protect the President and the university, she failed to do so. The alleged opposition to an independent investigation had a particularly negative impact on the university. Such an investigation would have gone a long way in showing no effort to coverup the allegations and to be proactive in response to the scandal. The failure to inform the former president that his emails had been handed over to prosecutors is also a problematic omission if true. Baldwin was in a tough position with a criminal investigation in the field. She had to avoid any allegation of tampering with evidence or witnesses. However, the former president did have a right to know about productions of evidence in the case that would be relevant to his grand jury testimony.
The impression left by the Freeh Report is that the university lawyers failed to protect the interests of the school but being too defensive and obstructive. If so, this would not be the first time that schools did greater harm to themselves by adopting a defensive and passive stance. However, Baldwin is entitled to a response on such matters and, in light of the former president’s attack, I do not see what legal ethics rules would not allow some response. Usually such disclosures occur during formal proceedings. Under Pennsylvania ethics rules, a lawyer may reveal confidential information to establish a claim or defense when accused by a client of wrongdoing to establish a defense to proceedings brought against the lawyer. PA-R 1.6(c)(3). Moreover, a lawyer may reveal confidences or secrets “to establish or collect his fee or to defend himself or his employees or associates against an accusation of wrongful conduct.” DR 4-101(C)(4).
One obvious step for Baldwin is to seek a waiver from the university to allow her to respond to these attacks by Freeh and Spanier. It might not give it or require approval of a statement by Baldwin. However, if she is concerned about the disclosures, that would be an expected move in such a circumstance. There is also the question of defamation if Spanier’s account is false about failing to inform him of critical facts and opposing the appointment of experienced independent counsel. However, such actions are frowned upon by the courts and the bar.
While there is a legitimate basis to question the decisions made by Baldwin, Spanier may be putting too much blame on others. He was clearly informed of the allegations though perhaps not as detailed as he would have wanted. He had ultimate authority to demand more information and more action in this matter.
Baldwin has had an impressive career with many notable distinctions. After graduating from Duquesne Law School, she served as a Fulbright Lecturer and Guest Scholar at the Brookings Institution. She was a trial judge in the Allegheny County Court of Common Pleas for 16 years and then appointed to the Pennsylvania Supreme Court. She was a member of the Board of Trustees of The Pennsylvania State University from 1995 until 2010 and chaired the board from 2004-2007.
Here is the letter: Spanier Letter