Could Baldwin's Role Doom Case Against PSU Officials?
William A. DeStefano of Stevens & Lee said the safe harbor argument can be a tough sell to make because it is dependent upon the nature in which the attorney instructed the purported client and how the individual then acted.
"It gets back to harm," he said. "It is: What would you have done differently [if you had known you were not being represented]? It's really case specific."
A Frequent Dilemma
Attorneys who spoke with the Law Weekly agreed that friction between administrators and the entities they oversee occurs frequently, and that general counsel often must advise the administrators that their client is the company and their representation does not extend to the officials individually.
"Once there's a problem, you are ethically required to advise both entities of potential conflict," DeStefano said. "Even though it hasn't ripened quite yet, it might ripen down the road."
The rules governing an attorney's conduct and communication with individuals who are not the attorney's client are outlined in the Model Rules of Professional Conduct. While the code is clear on paper, in practice the roles can become murky, especially for general counsel, who work regularly with and advise the same administrators and company officials for decades.
Several attorneys who spoke with the Law Weekly suggested that in-house counsel should give an Upjohn warning, commonly referred to as a corporate Miranda warning, which is a formal notification given by the lawyer that the representation does not extend to the individual, at the outset of any investigation their company may face.
Attorneys who spoke with the Law Weekly agreed that responsibility to clarify representation for the individual may also extend to prosecutors and judges.
For Brotman, while the onus is on the lawyer to provide clarity, prosecutors and judges who are confused about the role of a counselor also have a duty to provide clarity.
"They have a duty to protect the integrity of the grand jury process, and a duty not to violate his rights, or permit him to testify when he believes he's being represented and they are aware that his belief is incorrect," she said.
According to De Monaco, the interests of the university and the administrators aligned when Baldwin accompanied them to the grand jury proceedings. He added that Baldwin further insisted upon and assisted each defendant in retaining his own personal counsel after she became aware that Schultz and Curley would be indicted and after Spanier was fired.