Cynthia Baldwin was the general counsel for Penn State. Lawyers hired to represent an employer will of course be actually representing individual employees, and in that capacity, there is privilege between legal counsel and individual employees. As long as an individual is "acting in the course and scope of their employment", liability for their actions falls on the employer, not the individual employees. The employer provides legal counsel for said employees, and privilege attaches.
The issue is whether the employee was acting in the course and scope of his employment - or OUTSIDE the scope. If outside the scope, no privilege attaches. Criminal actions cannot be within the course and scope of employment, because contracts of employment requiring illegal actions are null and void, and unenforceable. The legal term is void ab initio, i.e, void upon initiation, or void from the beginning. Bottom line, one cannot contract for criminal behavior. At a crasser level, that is why bookies can't go to court to enforce gambling debts, so resort to threats and physical violence instead.
Enabling/ignoring Sandusky was done in the course and scope of Curley's and Schultz's employment. But Curley and Schultz are not being charged with failing to deal with Sandusky, but with lying to the grand jury. That's a crime and emphatically not within the course and scope of their employment. There could be no enforceable contract requiring an employee to lie in court or to a Grand Jury. These 2 guys may have thought they had privilege, but ignorance of the law is no defense.
An example from one of my old cases: If an employee has a duty to provide safety equipment, and negligently fails to make sure the equipment is sufficient, resulting in harm to a third party, there would be privilege between the employer's attorney and the employee. However, if the employee maliciously sabotaged said equipment, with the aim of causing harm to someone he had previously threatened, that criminal action would be "outside the course and scope of the employment", and his employer will not provide legal counsel for that action.
In this case, Curley and Schultz are not being charged in regard to their actual dealings with Sandusky, but with subsequently lying to the grand jury about their actions. Those lies were not in "the course and scope of their employment".
As always with the law, there are arguments to be made on both sides, and this really is a mess. Lack of communication between Baldwin and these 2 guys caused the problem, and I agree with the Freeh Report that she is at fault.
"Singled out repeatedly in the Freeh report for missteps in the investigation of a possible coverup at Penn State University, former general counsel Cynthia Baldwin is made out to be a scapegoat in the newest grand jury presentment issued Thursday by the state attorney general's office.
"The document goes on for several pages explaining how ousted university president Graham Spanier directed the former state Supreme Court justice's actions, told her who she would represent and how, and even kicked her out of an executive session with Penn State trustees in such a startling fashion that the woman forgot her purse."
Read more: http://www.post-gazette.com/stories/local/state/grand-jury-sheds-new-light-on-psu-officials-interactions-660254/#ixzz2LpFXOJWi
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