Attorneys for two former top administrators at Penn State University filed a motion this week seeking to prevent the school's former general counsel from testifying at their preliminary hearing next month, arguing that she would violate attorney-client privilege by doing so.
Gary Schultz, former senior vice president of business and finance, and suspended athletic director Tim Curley want to stop Cynthia Baldwin from testifying at the hearing set for Dec. 13 in Harrisburg.
A former state Supreme Court justice, Ms. Baldwin is expected to provide pivotal testimony against the two men, even though she was the attorney they believed was representing them during their grand jury testimony in the Jerry Sandusky sex abuse case.
The filing revolves around the concept of attorney-client privilege, whether the administrators are covered by it, and if so, if there might be an exception to the law that would allow Ms. Baldwin to testify against the men anyway.
Experts say it will be interesting to watch how the issue plays out and what effect it could have on the ongoing criminal case.
In the motion filed Tuesday, defense attorneys Caroline Roberto and Tom Farrell argue that when Mr. Curley and Mr. Schultz were charged with new counts early this month, including conspiracy, endangering the welfare of children and obstruction of justice, the counts were based "in large part, on Baldwin's testimony before the grand jury as to privileged communication with her clients.
"Baldwin's testimony about her privileged conversations with Schultz, Curley and [former Penn State President Graham] Spanier is in fact the sole support for the existence of a conspiracy to commit perjury," they wrote.
The defendants previously filed another motion with the court, asking that the charges against them be dismissed because they were not adequately represented by counsel at their grand jury testimony on Jan. 12, 2011.
They believed that Ms. Baldwin was their attorney, but later in an interview with investigators from the group led by former FBI director Louis Freeh, she said she was representing Penn State.
If she was representing the university, the defense said, then she had a conflict in representing them as individuals.
However, in a response filed last week, the state attorney general's office disagreed, saying that at the time, the defendants intended to cooperate with the investigation, and therefore there was no conflict because everyone had the same interests.
According to the most recent grand jury presentment, Ms. Baldwin's testimony against the men plays a significant role in the new charges against both Mr. Schultz and Mr. Curley and against Mr. Spanier, who was also charged this month.
"She testified before the grand jury that based on her conversation with her clients, it was evident that Curley and Schultz 'extensively discussed' their grand jury testimonies with Spanier," the defense wrote.
According to the motion, neither Mr. Curley nor Mr. Schultz have waived their attorney-client privilege.
"In the absence of a waiver by the client, an attorney is barred from testifying, in a criminal matter, regarding statements that the client made to the attorney in confidence," the motion said. But legal experts say there are exceptions to that rule, and even before getting to that point, Mr. Schultz and Mr. Curley will have to prove that an attorney-client relationship actually existed between each man and Ms. Baldwin.
Stephen Gillers, who teaches legal ethics at New York University School of Law, said the burden will be on the Penn State administrators to show that they were represented individually by Ms. Baldwin.
That they said so in their grand jury testimony -- and she did not correct them -- is a factor in their favor, he said, but not conclusive.
"It could also mean that she was their lawyer in their official capacities as representatives of Penn State," Mr. Gillers said. "In the event of ambiguity, it's a steep hill."
If the defendants can prove Ms. Baldwin was their lawyer, they then must show that they had privileged communications for the purpose of her providing them legal advice.
Even then, Mr. Gillers said, Ms. Baldwin and the prosecution could assert an exception to the attorney-client privilege, which would allow her to testify about information she learned from them.
He outlined two possible exceptions that could come into play.
The first is the "crime fraud exception." It says that the communication is not privileged if a client seeks advice from the lawyer for the purpose of committing a crime or fraudulent act. In that instance, the attorney does not have to be aware that a crime is being contemplated.
The next is the "self-defense exception," which a lawyer can assert in an effort to protect against charges being filed against him or her.
In that case, though, Mr. Gillers said, the prosecution cannot use the information gleaned from the lawyer in a prosecution of the client.
But, he continued, that doesn't mean that the prosecution wouldn't make an effort to get the information admitted in a different way.
"They're going to begin to think, 'Can we defeat the claim of privilege or establish the crime fraud exception?' " he said. "It's obviously convenient for the prosecution to make accusatory noises against the lawyer, figuring the lawyer is going to fold. And if it's good, [they'll] figure out a way to get it."
In this case, Mr. Gillers said, it would have been Ms. Baldwin's responsibility to assert the attorney-client privilege when she testified before the grand jury.
According to the defense motion, that was the direct instruction provided to her by attorneys for Mr. Curley and Mr. Schultz in June.
Lawyers for both men sent letters to Ms. Baldwin's attorney, Charles De Monaco, explaining that their clients did not waive the privilege and that she should "assert the attorney-client and work-product privileges in response to any and all requests" from prosecutors or the Freeh investigators.
Mr. De Monaco said his client would not interfere with due process in the case and would not litigate the issue in the media.
"Cynthia Baldwin is not a party to this proceeding," he said.
Former federal prosecutor and Saint Vincent College law professor Bruce Antkowiak said the question of Ms. Baldwin's role in the investigation has been a continuing topic of conversation in legal circles.
"The idea of an attorney going in and speaking with the grand jury like this was very unusual," he said.
Most lawyers, he said, would assert attorney-client privilege, and then make the court force them to testify after a judge determines that some exception permits it or that there was no protection in the first place.
"As much as possible, you preserve the privilege," Mr. Antkowiak said.
It is not clear if that happened in this case.
"What this case is going to turn on is, who was her client?" Mr. Antkowiak said. "It's going to be a fascinating thing to watch."
In the event the judge plans to permit Ms. Baldwin to testify, the defendants have asked for a stay of the preliminary hearing and have said that it will become an "immediately appealable" issue that likely would go to the state Superior Court.