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The Legal Intelligencer
Lawyers Debate Privilege-Waiver Issue in Abuse Case
By Amaris Elliott-Engel
January 27, 2012
Attorneys for the Catholic Archdiocese of Philadelphia say it may assert attorney-client privilege that can't be waived even if the archdiocese's former personnel director -- who is accused of endangering the welfare of children by not taking sufficient action to protect children from sexually abusive priests -- waives his own attorney-client privilege.
Philadelphia prosecutors, however, argued that it is solely up to Monsignor William Lynn, who is preparing to defend against charges of endangering the welfare of children and conspiracy in a trial later this winter, whether he waives his privilege.
Prosecutors are placed in an "untenable" position in that if Lynn addresses conversations and consultations he had with lawyers and with therapists treating priests accused of sexual abuse and other sexual improprieties, with the assertion of attorney-client privilege by the archdiocese, prosecutors might not be able to access documents surrounding the points of contact Lynn had about abusive priests that they would otherwise be entitled to, prosecutor Patrick Blessington said.
Lynn is slated to be tried along with codefendant priests charged with actually committing the abuse.
The lawyers were in court because, among other matters, of the prosecutors' motion in limine to restrict Lynn from asserting an advice of counsel defense.
In his opening remarks, Blessington said there was a conflict between Lynn and the archdiocese regarding attorney-client privilege because Lynn was represented by an attorney from Stradley Ronon Stevens & Young at the same time Stradley Ronon was representing the archdiocese during the Philadelphia District Attorney Office's first investigating grand jury into sexual assault by priests of minors.
"This inherent conflict ... just keeps seeming to reinject itself" into the case, Blessington said.
Robert Welsh, whose firm Welsh & Recker was hired last fall to quarterback the criminal and civil litigation over the sex-abuse scandal, said that they do not think Lynn would be waiving his privilege if he testified that he talked to lawyers at Stradley Ronon or proceeded with an action regarding a priest after getting a green light from lawyers at Stradley Ronon.
But the archdiocese will oppose Lynn talking about the substantive advice he received from Stradley Ronon as an agent of the archdiocese, Welsh said.
"We're resisting going further," Welsh said. "We believe the archdiocese has a right to insist he not waive privilege."
Philadelphia Common Pleas Court Judge M. Teresa Sarmina asked how that would be fair to Lynn. Posing a hypothetical, Sarmina said asserting privilege might be unfair to Lynn if he would testify that his "gut sense" on how to handle an allegedly abusive priest varied from what Stradley Ronon advised, but Lynn selected the course proposed by attorneys because of their advice.
Such action might show he does not have "malice or evil heart," Sarmina said.
But Welsh said the archdiocese did not "impliedly or explicitly relinquish that right" to attorney-client privilege.
Lynn does not "have a right to vitiate the archdiocese's right unilaterally," Welsh said.
Blessington argued that the attorney-client privilege must be viewed as a triangle, with Lynn at one point, the archdiocese at another point and Stradley Ronon at the third point.
If it was communication between Lynn and Stradley Ronon, it's Lynn's privilege alone to waive, Blessington argued.
Jeffrey M. Lindy of Lindy & Tauber, who said he started representing Lynn in 2004, said that Stradley Ronon was representing the archdiocese and the archdiocesan witnesses who went before the first investigating grand jury.
There is no advice of counsel defense in Pennsylvania, Lindy said, but Lynn could tell the jury about the conversations he had with attorneys at Stradley Ronon as part of his job as the secretary of clergy, which included dealing with priests who allegedly sexually abused children, to counter the prosecutors' contention that he had the state of mind to commit the crimes he's accused of, Lindy said.
Lynn and his lawyers have not yet decided if he will testify, Lindy said.
While the archdiocese is paying for Lynn's counsel, which also includes Thomas A. Bergstrom of Buchanan Ingersoll & Rooney, the counsel's loyalty only is to Lynn, Lindy said. The Pennsylvania ethics rule for attorneys allow for a third-party payor for a defendant's counsel as long as the defense lawyers are crystal clear their duties are owed to the client alone, Lindy said.
Lindy said during the hearing that his co-counsel and he have not had substantive conversations with Welsh & Recker. During a recess in the hearing, Welsh remarked to Lindy that the only conversation he'd had with Lindy about the case was when they ran into each other at a coffee shop and Lindy had remarked Blessington had a sense of humor.
During a break in a separate hearing Wednesday, Bergstrom also told prosecutors he has not had a substantive conversation with Welsh & Recker.
Blessington said that Bergstrom's and Lindy's "honor is beyond reproach," but he argued that the archdiocese keeps injecting itself in the case in a way the prosecutor said might even be obstructionistic.
Welsh also pointed out that Stradley Ronon still represents the archdiocese on nonlitigation matters and it's an attorney-client relationship that has lasted for 60 years and will continue.
Sarmina ordered Welsh & Recker to identify each and every time in the archdiocese's records that Lynn received advice, when serving as secretary of clergy from 1992 to 2004, from lawyers regarding issues of sexual assault or child pornography.
Sarmina said she would not decide until later whether those documents should be turned over, but she said she wanted them to be ready in case she enters that order.
The judge said she does not want to delay a trial set for jury selection in a month and to open in two months.
Amaris Elliott-Engel can be contacted at 215-557-2354 or aelliott-engel@alm.com. Follow her on Twitter @AmarisTLI.
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