Hearing examines prosecutor in Penn State probe

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Former top state prosecutor Frank Fina. Disciplinary officials have filed misconduct charges against him. He says the complaint is groundless.

An expert in legal ethics on Thursday accused former state prosecutor Frank Fina of unfairly turning a lawyer into a “turncoat” witness to build a cover-up case against a former Pennsylvania State University president and two senior aides, but Fina’s advocates said the expert ignored a judge’s opinions that undermined his argument.

Lawrence Fox, a lecturer at Yale University, testified  in effect as a prosecution witness at a hearing  before a panel of the state Disciplinary Board for lawyers, which is weighing an allegation that Fina ran roughshod over the rights of  former president Graham B. Spanier and the aides, all of whom were later convicted of failing to alert authorities of a sexual-abuse allegation made against child molester Jerry Sandusky.

 

Fox said Fina violated ethics rules by putting Penn State’s then-general counsel, Cynthia Baldwin, on the stand before a grand jury to testify against Spanier, former vice president Gary Schultz, and former athletic director Tim Curley, thereby unfairly stripping them of their right to keep secret their discussions with counsel. Baldwin, who had been overseeing the university’s legal response to the scandal, accompanied the three men to critical grand jury appearances.

Fox said Fina disregarded the men’s claim that they viewed her as their lawyer.

“These individuals had every right to think they would have the benefit of the attorney-client privilege,”  said Fox, 74, a leading national pundit on legal issues.

In the wake of a scathing 2016 Superior Court opinion that faulted Fina and dismissed the most serious charges against Spanier and his lieutenants, the counsel for the Disciplinary Board for lawyers accused Fina and Baldwin of misconduct, saying they had violated  official rules for attorneys.

Baldwin, a former state Supreme Court justice,  underwent a two-day hearing last month in Pittsburgh before a three-lawyer panel.  The panel has to issue a ruling. Fina’s hearing got underway Thursday in Philadelphia and is scheduled to resume over one or two days next month.  The pair face penalties that could include reprimands or suspension of their law licenses.

In their defense, Fina and Baldwin say she made it clear to the three administrators that her client during the investigation was the university as an institution and not them personally.

This prompted a rebuttal from Fox.  “You are entitled to one true champion, not a corporation’s lawyer,” he said.

Fina, then the top prosecutor with the state Attorney General’s Office, called Baldwin as a prosecution witness before the grand jury in late 2011, several months after she had accompanied the administrators there.

He and Baldwin maintain he broke no ethical rule in calling her  because the university, as the client in the matter, had waived its right to keep her testimony secret.  Baldwin has also said she concluded that the three aides had earlier lied to her about their cover-up, leaving her with the false idea that there was no conflict between their defense and the university’s posture.

In Thursday’s hearing, Fina’s lawyers, Dennis C. McAndrews and Joseph McGettigan,  reminded the hearing’s three-lawyer panel that two Common Pleas Court judges — Barry Feudale  supervising the investigative grand jury,  and Todd Hoover, overseeing the administrators’ trials — had concluded Fina’s conduct was proper.

As a result of McAndrews’ questioning, Fox acknowledged he had yet to read newly unsealed transcripts in which Spanier, Curley, and Baldwin testified before Hoover about the attorney-client issue, and subsequent opinions in which the judge rejected their claims that their rights had been violated.  In his opinions, McAndrews said, Hoover, who has since died, found Baldwin to be an honest witness and the administrators to be untrustworthy.