## Facts

- The Pennsylvania Office of Attorney General convened a statewide investigating grand jury regarding allegations that Jerry Sandusky sexually abused minors.
- Graham B. Spanier, then Penn State’s president, was subpoenaed to testify before the grand jury.
- Penn State’s General Counsel, Cynthia Baldwin, appeared with Spanier at the grand jury; Spanier identified Baldwin on the record as his attorney, and Baldwin did not correct that representation in the supervising judge’s presence.
- Baldwin had previously indicated to the court that she represented Penn State as an institution and did not clearly advise Spanier that she was not his personal attorney despite the criminal-investigation context.
- Baldwin later testified before the same grand jury about communications with Spanier related to the investigation and his testimony; her testimony materially contradicted parts of Spanier’s grand-jury testimony.
- Based in part on Baldwin’s grand-jury testimony, the Commonwealth brought charges against Spanier including perjury, obstruction of justice, conspiracy, failure to report suspected child abuse, and endangering the welfare of children.
- Spanier moved pretrial to exclude Baldwin’s grand-jury testimony as privileged and to quash charges dependent on that testimony; the trial court denied relief, finding no individual attorney–client relationship.
- Spanier took an interlocutory appeal; the Superior Court exercised jurisdiction under Pennsylvania’s collateral order doctrine because the order implicated attorney–client privilege and would be effectively unreviewable after final judgment.

## Issues

1. Whether an implied attorney–client relationship existed between Spanier and Baldwin in connection with Spanier’s grand-jury testimony, creating an individual attorney–client privilege.
2. Whether Baldwin’s grand-jury testimony disclosed privileged confidential communications, making her incompetent to testify to those communications absent waiver.
3. Whether charges substantially derived from Baldwin’s privileged grand-jury testimony had to be quashed.

## Decision

- The Superior Court reversed the trial court in part.
- The court held that an attorney–client relationship arose between Baldwin and Spanier for purposes of the grand-jury proceeding because Spanier reasonably believed Baldwin represented him and Baldwin failed to clarify otherwise in the supervising judge’s presence.
- The court held that Baldwin’s grand-jury testimony disclosed confidential communications made for the purpose of obtaining legal advice and thus breached Spanier’s attorney–client privilege.
- The court held Baldwin was incompetent to testify to those confidential communications absent a valid waiver, and the record did not establish waiver.
- The court quashed the perjury, obstruction of justice, and related conspiracy counts that were predicated on, or substantially derived from, Baldwin’s privileged testimony.
- The court left intact other counts (including failure to report suspected child abuse and certain endangering-the-welfare-related charges) that were supported by evidence independent of the privileged communications.

## Legal Principles

- An attorney–client relationship may be implied when an individual seeks legal advice, the lawyer acts in a legal-representative capacity, and the individual’s belief that the lawyer represents them is reasonable under the circumstances.
- Attorney–client privilege protects confidential communications made for the purpose of obtaining or providing legal advice; the privilege applies in grand-jury contexts when those elements are satisfied.
- Institutional counsel must clearly identify the client and the limits of representation; failure to clarify may support a reasonable belief of individual representation and associated privilege obligations.
- An attorney who has an attorney–client relationship with a person is not competent to testify about that person’s privileged confidential communications without a valid waiver.
- When privileged communications are improperly used to support criminal charges, counts substantially dependent on the privileged material may be quashed, while charges supported by independent, non-privileged evidence may proceed.

## Conclusion

The court held that Penn State’s general counsel formed an implied attorney–client relationship with Spanier for his grand-jury appearance, making their related communications privileged; because counsel then breached that privilege by testifying to those communications, the court quashed the privilege-tainted perjury, obstruction, and related conspiracy counts but allowed independently supported charges to continue.


Commonwealth v. Spanier, 132 A.3d 481 (Pa. Super. Ct. 2016)