All things Cynthia Baldwin

[Rlaub44]

"Most of it is incompetence, not malevolence," said Duquesne University law professor Bruce Ledewitz.
The biggest question to him, though, was who Ms. Baldwin was representing before the grand jury that was investigating Mr. Sandusky and ultimately recommended charges against him, and former Senior Vice President Gary Schultz and athletic director Tim Curley.
"The most significant matter in terms of ethics is what happened in the grand jury room," Mr. Ledewitz said. "The first thing you learn in legal ethics is to know who the client is."
If Ms. Baldwin's intent was to attend as a representative of the university, Mr. Ledewitz said, it was her obligation to correct both Mr. Schultz and Mr. Curley when they said she represented them.
"It's not the kind of error a Cynthia Baldwin could make," Mr. Ledewitz said. "I don't have an explanation.
"It's not a close call. It's the rule, period. Every experienced lawyer knows when there is an institution and an individual, you have to clarify who you're representing."
Bruce Antkowiak, a former federal prosecutor who now is a law professor at St. Vincent College, said it surprised a lot of lawyers in the criminal defense bar when they learned Ms. Baldwin attended the grand jury.
http://www.post-gazette.com/stories...al-counsel-cited-for-missteps-644744/?print=1

 

[Rlaub44]

This is strange. From the most recent Grand Jury presentment:

"Spanier also pressed Baldwin for information about [Joe] Paterno's contacts with investigators and the Grand Jury. When she informed Spanier that Paterno had acquired his own lawyer who was not affiliated with the University, Spanier seemed disturbed and questioned why Paterno would not use the University's legal counsel."

 

[Twindad]

This is strange. From the most recent Grand Jury presentment:

"Spanier also pressed Baldwin for information about [Joe] Paterno's contacts with investigators and the Grand Jury. When she informed Spanier that Paterno had acquired his own lawyer who was not affiliated with the University, Spanier seemed disturbed and questioned why Paterno would not use the University's legal counsel."

It feels like this is part of "we are penn state". It seems as if their own sense of self is tied to the university. Maybe this belief led them to conclude the attorney representing the "university" also represented them.

 

[J. J. in Phila]

If Ms. Baldwin's intent was to attend as a representative of the university, Mr. Ledewitz said, it was her obligation to correct both Mr. Schultz and Mr. Curley when they said she represented them.
"It's not the kind of error a Cynthia Baldwin could make," Mr. Ledewitz said. "I don't have an explanation.

She seems to, prior to the grand jury session. I would presume that they were present.

 

[Rlaub44]

This is strange. From the most recent Grand Jury presentment:

"Spanier also pressed Baldwin for information about [Joe] Paterno's contacts with investigators and the Grand Jury. When she informed Spanier that Paterno had acquired his own lawyer who was not affiliated with the University, Spanier seemed disturbed and questioned why Paterno would not use the University's legal counsel."

Sorry to quote myself (poor form, I know), but my point was this:

What is to question, if the University wasn't offering legal counsel to the GJ witnesses? Why would Baldwin make a point of telling Spanier that Paterno chose a lawyer "who was not affiliated with the University", as if that had been an option?

I'm telling you, there is more to this than Baldwin's side of the story.

Also, remember when Lanny Davis said Baldwin didn't stay for Paterno's testimony because “Curley and Schultz were senior officers, they were members of the administration,” Davis said. “She felt it was her responsibility because she represented the university as general counsel.” By contrast, Paterno “was not a member of the administration.” Davis said she also noted that Paterno was with two attorneys"

Well, check this passage from the PSU Office of General Counsel website:
The Office of General Counsel provides legal advice and representation to the Board of Trustees, the President and other administrators in their capacity as agents conducting University business.
http://ogc.psu.edu/

If you ignore her cover story that she told the judge privately that she was representing the University and just wanted to watch, is it still so foolish to believe that, initially, she was representing the Penn State administrators for actions they undertook while conducting University business?

 

[J. J. in Phila]

Sorry to quote myself (poor form, I know), but my point was this:

What is to question, if the University wasn't offering legal counsel to the GJ witnesses? Why would Baldwin make a point of telling Spanier that Paterno chose a lawyer "who was not affiliated with the University", as if that had been an option?

Well, that was an option, to hire an attorney. They should have.

Well, check this passage from the PSU Office of General Counsel website:
The Office of General Counsel provides legal advice and representation to the Board of Trustees, the President and other administrators in their capacity as agents conducting University business.
http://ogc.psu.edu/

They were not conducting University business or acting as agents.

If you ignore her cover story that she told the judge privately that she was representing the University and just wanted to watch, is it still so foolish to believe that, initially, she was representing the Penn State administrators for actions they undertook while conducting University business?

The key is here:

An attorney of record is a lawyer who has who has been appointed by a person or some entity as the representative to the court or legal procedures, appears in the court on behalf of a client, and signs documents as Attorney to the client. The attorney of record identified in the permanent record of file of a case is the attorney who bears the ultimate responsibility for the handling of the case on behalf of the party represented. The attorney of record remains in this position until he or she has been formally and legally removed or replaced.

http://www.superpages.com/supertips/attorney-of-record.html

She apparently did not identify herself as the attorney of record, to the court, nor signed anything with Curley, Schultz or Spanier indicating she was.

 

[Rlaub44]

Well, that was an option, to hire an attorney. They should have.

No, the other option - using University counsel. If it wasn't an option, why did Baldwin make note that Paterno chose to hire an attorney not affiliated with PSU? Why would Spanier have been surprised that Paterno wasn't using a University attorney, if none of them had the choice to?

They were not conducting University business or acting as agents.

You can't have it both ways. If they weren't acting as agents of the University when dealing with McQueary's report, then the NCAA has no standing to levy sanctions, and they had no responsibility under the Clery Act. Obviously, they were agents of the University when they chose not to report Sandusky's crime, and as such, would be eligible for University Counsel at the Grand Jury. If they weren't agents of the University, then Baldwin had no business at all being at the Grand Jury to represent PSU, who would have had no standing in the matter.

The key is here:

An attorney of record is a lawyer who has who has been appointed by a person or some entity as the representative to the court or legal procedures, appears in the court on behalf of a client, and signs documents as Attorney to the client. The attorney of record identified in the permanent record of file of a case is the attorney who bears the ultimate responsibility for the handling of the case on behalf of the party represented. The attorney of record remains in this position until he or she has been formally and legally removed or replaced.

http://www.superpages.com/supertips/...of-record.html

She apparently did not identify herself as the attorney of record, to the court, nor signed anything with Curley, Schultz or Spanier indicating she was.

That might be valid, but notice that Schultz didn't offer that Baldwin represented him; he was asked:
“You are accompanied today by counsel, Cynthia Baldwin. Is that correct?”

“That is correct.”

So what made the prosecutor believe Cynthia Baldwin was representing Schultz if nobody named her as attorney of record? He/she wouldn't have just assumed that since Curley said she was his attorney, she must be Schultz's as well.

 

[Salem]

I agree with these points, but returning to Jay Paterno, why didn't Curley, Schultz, and Spanier also consult their own attorneys. Certainly they had personal attorneys.

There is also the educational standards/experience issues. Curley and Schultz both had their master's; Spanier had his doctorate. All were long term senior corporate officers of a multi-billion dollar corporation.

I don't know why Curley, Schultz and Spanier didn't consult their own attorneys - but I find it very interesting. Either they thought, at the time, that they were innocent of any criminal activity or they were, well, stupid. I find the stupidity angle hard to believe. I'm way behind on the case and haven't been keeping up with the media articles. Is it possible they really thought they were not legally responsible for covering up Sandusky's behavior?

Paterno's son is an attorney so I'm sure he made sure his dad was covered - even if Paterno thought he was in the clear, I'm sure his son was not willing to take any chances.

I'm also surprised that the legal heavy's are calling this situation the way they are. I need to do some back reading and see if I am missing some of the finer details.

Salem

 

[Salem]

I don't know - as a member of the bar, if someone wrongly names you in court as their attorney of record, in your presence, I can't imagine you wouldn't have an obligation to correct it. It isn't like a witness just making a false statement about what they did. It is materially related to the proceedings occurring at the moment, and it affects their right to counsel.

Granted, they weren't on trial, but the statements they made that day became the basis for perjury charges, and they didn't have counsel, although they claimed(thought?) they did.

I can't believe that Curley and Schultz cooked up the idea to claim Baldwin represented them; what purpose would that serve? How could they know that she wouldn't correct them on the spot? What would have happened if during questioning, Curley asked for a moment to confer with his counsel, Cynthia Baldwin? It would have looked very unprofessional for her to have sat quietly when he initially named her as his attorney, only to have her then have to explain that she couldn't advise him as she didn't actually represent him.

Based on the information that Curley and Schultz gave CB - how could she know that they were going to commit perjury? A lawyer pledges an oath to the court. If a lawyer lies to the court, they can be disbarred. And this extends to their clients - if their clients lie, and the attorney knew the client fully intended to do so, the attorney is culpable. So if CB thought they were going to tell the truth on behalf of the University, she would have been acting in her capacity. The article above says she told the Judge she was representing the University. Curley and Schultz were not charged with criminal activity until they perjured themselves, correct? Again, if they thought they were legally in the clear and that they were testifying on behalf of the University - the issue could get cloudy. However, I think CB did inform Curley & Schultz that she was representing the University when she told the judge that, unless it was a sidebar conversation and not asked and answered in open court.

Salem

 

[J. J. in Phila]

No, the other option - using University counsel. If it wasn't an option, why did Baldwin make note that Paterno chose to hire an attorney not affiliated with PSU? Why would Spanier have been surprised that Paterno wasn't using a University attorney, if none of them had the choice to?

They did have another option, not to use an attorney. You can walk into a grand jury without an attorney.

You can't have it both ways. If they weren't acting as agents of the University when dealing with McQueary's report, then the NCAA has no standing to levy sanctions, and they had no responsibility under the Clery Act. Obviously, they were agents of the University when they chose not to report Sandusky's crime, and as such, would be eligible for University Counsel at the Grand Jury. If they weren't agents of the University, then Baldwin had no business at all being at the Grand Jury to represent PSU, who would have had no standing in the matter.

Those were individual acts, not acts on behalf of the University.

That might be valid, but notice that Schultz didn't offer that Baldwin represented him; he was asked:
“You are accompanied today by counsel, Cynthia Baldwin. Is that correct?”

“That is correct.”

So what made the prosecutor believe Cynthia Baldwin was representing Schultz if nobody named her as attorney of record? He/she wouldn't have just assumed that since Curley said she was his attorney, she must be Schultz's as well.

The easy answer is "Central Pennsylvania Gothic." They thought that because of the positions that they held, they were the University. Curley had been there since 1972, as an undergraduate. Schultz since 1967. They expected that the University would just circle the wagons and protect them, like they did with Sandusky.

 

[Salem]

I do think CB was providing legal advice to Curley & Schultz, while they were acting on behalf of the university. However, Curley & Schultz both stepped outside the scope of the university when they chose to lie to the court. CB represented Penn State. Her job is to act in the best interest of Penn State. Because Penn State is an entity - not an individual - she would provide advice and legal counsel to the people that run Penn State - with the ultimate responsibility to represent and act in the best interest of Penn State.

I'm thinking this is where everything fell apart. If Curley & Schultz had acted in the best interest of Penn State, if they wouldn't have perjuried themselves, if they wouldn't have acted to cover up Sandusky's crimes, this would all be a moot point. But the fact is, they did and when they did, they were no longer entitled to representation or advice of general counsel because they were not acting as representatives of the Penn State - they were acting to cover their own hind ends.

As individuals - they are not entitled to representation of general counsel.

Salem

 

[Rlaub44]

They did have another option, not to use an attorney. You can walk into a grand jury without an attorney.

True, but that wasn't what Baldwin reported Spanier was disturbed about - it was that Paterno wasn't using University Counsel.

Those were individual acts, not acts on behalf of the University.

Somebody better tell that to Mark Emmert, Mid-Atlantic accreditation, and the victims attorneys who are suing the University for the actions of Schultz, Curley and Spanier.

The easy answer is "Central Pennsylvania Gothic." They thought that because of the positions that they held, they were the University. Curley had been there since 1972, as an undergraduate. Schultz since 1967. They expected that the University would just circle the wagons and protect them, like they did with Sandusky.

JJ, I can't help but think you are being a bit evasive here. How does what Schultz and Curley believed have any bearing on how Attorney Jonelle Eshbach from the AG's office came to believe Baldwin was representing Schultz? Eshbach asked Schultz if it was correct that Baldwin was his counsel; where did she get that idea?

I think Salem has it right in his last post: Baldwin was there to represent the men, until she saw which way the wind was blowing. I understand why then her responsibility was to the University, but it doesn't excuse her backpedalling and now claiming she did nothing more than carpool with them as a courtesy. And if she was advising them as administrators at PSU, I can't imagine it was ok for her to then testify at the Grand Jury against them. As administrators of PSU, they were her de facto clients, and I believe she broke privilege that I guarantee Curley and Schultz never waived.

 

[Rlaub44]

I do think CB was providing legal advice to Curley & Schultz, while they were acting on behalf of the university. However, Curley & Schultz both stepped outside the scope of the university when they chose to lie to the court. CB represented Penn State. Her job is to act in the best interest of Penn State. Because Penn State is an entity - not an individual - she would provide advice and legal counsel to the people that run Penn State - with the ultimate responsibility to represent and act in the best interest of Penn State.

I'm thinking this is where everything fell apart. If Curley & Schultz had acted in the best interest of Penn State, if they wouldn't have perjuried themselves, if they wouldn't have acted to cover up Sandusky's crimes, this would all be a moot point. But the fact is, they did and when they did, they were no longer entitled to representation or advice of general counsel because they were not acting as representatives of the Penn State - they were acting to cover their own hind ends.

As individuals - they are not entitled to representation of general counsel.

Salem

Very well stated. All she would have had to do is to explain that Penn State was providing representation to the men until they perjured themselves at the Grand Jury. At that point, they committed that act as private citizens, and the University no longer had a responsibility to provide or pay for their defense.

All this tapdancing around that her spokespeople are doing to make it appear she never represented them would not have been necessary, until she testified at the GJ. At that point, she had to act as if she never acted as counsel for the men, or she would clearly be guilty of violating attorney-client privilege.

 

[J. J. in Phila]

True, but that wasn't what Baldwin reported Spanier was disturbed about - it was that Paterno wasn't using University Counsel.

That might have a lot more to do with Spanier being controlling.

Somebody better tell that to Mark Emmert, Mid-Atlantic accreditation, and the victims attorneys who are suing the University for the actions of Schultz, Curley and Spanier.

I think Salem made the point better than I did.

JJ, I can't help but think you are being a bit evasive here. How does what Schultz and Curley believed have any bearing on how Attorney Jonelle Eshbach from the AG's office came to believe Baldwin was representing Schultz? Eshbach asked Schultz if it was correct that Baldwin was his counsel; where did she get that idea?

Didn't Curley already identify Baldwin as his attorney?

 

[Rlaub44]

That might have a lot more to do with Spanier being controlling.

It doesn't make sense if none of them have access to use University counsel.

I think Salem made the point better than I did.

Salem's point was that at first, Baldwin did advise them in the role of University counsel, until the interests of Penn State diverged from the interest of the administrators. That occurred after the grand jury appearances.

Didn't Curley already identify Baldwin as his attorney?

So Senior Deputy Attorney General Eshbach thought Baldwin was Curley's attorney; why would she automatically assume Baldwin was Schultz attorney too? If she were the only other person in the room besides the grand jurors, the prosecutors, the judge and Schultz, I could see why she and Schultz assumed that, being that it is apparently very unusual for anyone else to be allowed to sit in on a grand jury. So far, we still only have Baldwin's story that she identified to the judge that she didn't represent the witnesses.

Yet in this almost empty room, where she is given special dispensation to listen, we are to believe that she doesn't even do that:
As Curley and Schultz each began, they stated on the record that they were accompanied by “counsel” or “my counsel” Cynthia Baldwin, who sat with each as they testified.
Davis said Baldwin “does not remember hearing” those answers.
http://www.pennlive.com/midstate/index.ssf/2012/02/penn_state_legal_counsel_cynth.html

Now to me, that is patently ridiculous. Unless she were covering up her reason for being there.

Even if she signed in as representing Penn State, we know that the General Counsel can provide representation to administrators acting as agents of the university. At that time, neither man had perjured themselves yet, so they were only testifying to what they knew and did in their roles as Penn State administrators. So representing PSU meant advising the witnesses in the minds of the judge, prosecutors, and Schultz/Curley themselves.

 

[J. J. in Phila]

Rlaub, you seem to be making an assumption that these three are perfectly honest, and that Spanier, in particular, was not controlling. I don't.

Spanier was an administrator that got things done, who was called "little Napoleon" by some of his staff. I think that would include "controlling." Certainly the presentment indicated that he was. Normally, if he was not doing anything wrong, that might be a good thing.

 

[Rlaub44]

Rlaub, you seem to be making an assumption that these three are perfectly honest, and that Spanier, in particular, was not controlling. I don't.

Spanier was an administrator that got things done, who was called "little Napoleon" by some of his staff. I think that would include "controlling." Certainly the presentment indicated that he was. Normally, if he was not doing anything wrong, that might be a good thing.

Oh, don't get me wrong - they were FAR from honest. Spanier was surely controlling, but that is missing the point.

Baldwin related to the Grand Jury that Spanier got mad because Paterno wasn't using University counsel. But you have claimed that none of the men were eligible to be represented by University counsel, so why would Spanier have any issue with that?

I am not claiming the men are more honest than Baldwin, but the two things are not mutually exclusive. I have a problem with her actions, and as you have read, so do several attorneys and legal scholars.

I don't think her story is at all logical, and I don't think she is being honest.

On a related note, I have gotten no response from the General Counsel's office, so I emailed Trustee Anthony Lubrano about our discussion regarding Baldwin's right to report to the Board. He responded that he doesn't know offhand, but he will get me an answer. I'm very curious about the wording of the Standing Order you shared, so hopefully this will clarify it for me.

 

[J. J. in Phila]

Oh, don't get me wrong - they were FAR from honest. Spanier was surely controlling, but that is missing the point.

Baldwin related to the Grand Jury that Spanier got mad because Paterno wasn't using University counsel. But you have claimed that none of the men were eligible to be represented by University counsel, so why would Spanier have any issue with that?

You were asking about Spanier's response to Paterno getting his own attorney. His issue was that he thought he should (or could) control everything.

I am not claiming the men are more honest than Baldwin, but the two things are not mutually exclusive. I have a problem with her actions, and as you have read, so do several attorneys and legal scholars.

The only action in question is why was she permitted to be present for the testimony, ultimately. She disclosed that she was representing the University, and not Curley or Schultz. The judge permitted it. Granted, that is what she is saying, but the judge should be able to verify it. Baldwin is not charged with perjury.

On a related note, I have gotten no response from the General Counsel's office, so I emailed Trustee Anthony Lubrano about our discussion regarding Baldwin's right to report to the Board. He responded that he doesn't know offhand, but he will get me an answer. I'm very curious about the wording of the Standing Order you shared, so hopefully this will clarify it for me.

Mr. Lubrano might not be the best source for interpreting a rule. I would note that, according to the current Penn Stater, an alumnus is president of the Pennsylvania Association of Parliamentarians, so it would seem that someone could receive an expert opinion on the rule.

 

[Salem]

Very well stated. All she would have had to do is to explain that Penn State was providing representation to the men until they perjured themselves at the Grand Jury. At that point, they committed that act as private citizens, and the University no longer had a responsibility to provide or pay for their defense.

All this tapdancing around that her spokespeople are doing to make it appear she never represented them would not have been necessary, until she testified at the GJ. At that point, she had to act as if she never acted as counsel for the men, or she would clearly be guilty of violating attorney-client privilege.

I don't think CB backpedaled. I think she was at the Grand Jury representing Penn State. I think Curley & Schultz where the "physical manifestations" of that representation. When Curley & Schultz stopped performing for Penn State and stepped into their individual skins (so to speak) any and all representation from CB stopped. CB told the judge that she represented Penn State. No ambiguity there. I agree with CB's spokespeople that she NEVER represented the individuals, Curley & Schultz. I know it seems like semantics, but in law, it is semantics.

When an entity is involved, be it a University or a corporation or partnership, semantics becomes very important. A corp. doesn't run itself - it takes individual people to do that - but those individuals are NOT the "entity." Don't know if I'm making sense here but I think it is a very important distinction and the whole case rests on it (the CB v. C&S case).

If I understand it correctly, Curley and Schultz were witnesses at the Grand Jury to explain their actions, on behalf of the University, over the 1998 action against Sandusky and the McQuery report. So.. the quesion at issue was "what did the University do about these reports?" CB could provide counsel in answering this question. When C & S stepped outside the bounds of the question, they were acting as individuals. It is CB's responsibility to protect the University, including witnessing against those that take actions that hurt the University.

Salem

 

[Salem]

This is a nice blog post for figuring out who is who: http://www.bagwellforpennstate.com/blog/what-did-hintz-and-baldwin-know/

It was posted a page or so back by Rlaub44. I make no comment on CB's position as a trustee or whether or not she interferred with the investigation by refusing to supply information. But it is interesting stuff to read.

Salem