Continuing Fallout – The Penn State Scandal Spawns a Legal Malpractice Lawsuit

At least one of Penn State’s former attorneys is now under fire for her role in the investigation into the Jerry Sandusky scandal. The issue: did the attorney represent the University or its administrators? The lesson: document the scope of your representation.

Gary Schultz is the retired VP for business and finance at Penn State who has been accused of failing to report Sandusky’s acts and perjuring himself during grand jury testimony. But now it is Schultz who is on the offensive and the target is Cynthia Baldwin, the university’s former attorney. Schultz claims that during his testimony before the grand jury he was represented by Attorney Baldwin. Baldwin counters that she was representing the university but not its employees.

Attorneys may take for granted the fundamental but all too important question: who is my client? The legal malpractice claim filed by Schultz underscores the importance for attorneys to clearly explain the scope of the representation. From the outset of the grand jury investigation, Attorney Baldwin would have been well served to document to all applicable employees of Penn State her view that she represented the university, only. Likewise, Attorney Baldwin should have recommended that each of the subjects of grand jury investigation obtain independent legal counsel. Finally, Baldwin could have taken the precautionary step of stating, on the record, during the grand jury proceedings that she was not Schultz’s attorney.

Given the particularly sensitive nature of the Sandusky investigation, Attorney Baldwin would have benefited from a bit of appropriate paranoia. When faced with such a volatile situation, with finger-pointing galore, an attorney is well-served who evaluates her own role in the proceedings and takes extra precaution to protect her own neck. Here, without any clear engagement letter or other document, this matter may come down to Schultz’s word versus Attorney Baldwin – certainly an uncomfortable situation for any professional.

 

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