Secrecy in Grand Jury Investigations gets Scaled Back

The Pennsylvania Supreme Court has issued another opinion regarding the grand jury investigations into sexual abuse allegations against clergy in Pennsylvania. The Court issued its ruling after private attorneys for dioceses in Harrisburg and Greensburg refused to sign entry-of-appearance forms which would limit what the attorneys could disclose about their clients-witnesses’ testimony during the investigations, even after receiving their clients’ informed consent to do so. The supervising judge was hesitant to modify the forms, given the strong history of secrecy underlying grand jury investigations, essentially forcing an appeal up to the Pennsylvania Supreme Court.

As Craig Staudenmaier discussed in his article, “What Is So Secretive about Grand Jury Investigations,”[i] and despite how the investigations are portrayed, witnesses are allowed to reveal their testimony before the grand jury after they have testified unless the supervising judge specifically disallows such disclosure. Witnesses are also allowed to have counsel present, but somewhat paradoxically, their attorneys are unable to disclose anything regarding the client-witness’s testimony, even if the attorney receives informed consent from the client to do so. The prohibition on attorney disclosure stems from the Investigating Grand Jury Act, discussed more fully in Mr. Staudenmaier’s article.[ii] Private attorneys involved in proceedings are required to take an oath to keep everything relating to testimony heard during the investigation secret.

This oath often manifests in an entry-of-appearance form, required to be signed by attorneys representing witnesses testifying in a grand jury investigation. Before the Pennsylvania Supreme Court opinion, the form committed attorneys to secrecy for “all matters and information concerning th[e] Grand Jury obtained in the course of the representation.” The Court modified the language to state that attorneys were bound to secrecy except where the disclosure is “authorized by law or permitted by the [supervising] Court.” This modification allows for the possibility that the supervising court could authorize attorney disclosure of client-witness testimony.

Such authorization, however, does not give attorneys carte blanche to disclose what they will. The Supreme Court wanted to make sure that the traditional notions of secrecy within grand jury proceedings were still protected. Attorneys are thus required to obtain explicit, knowing, voluntary, and informed consent of a client-witness before disclosing anything regarding the client-witness’s testimony. The attorney must also request permission from the supervising judge to allow disclosure. Further, the Rules of Professional Conduct governing attorney-client confidentiality also apply to disclosures.

The Court incorporated these three provisions into the entry-of-appearance form stating that attorneys “understand that – with the explicit, knowing, voluntary, and informed consent of [their] client or clients, and absent a specific prohibition by a supervising judge or circumstances implicating prohibitions arising from the Rules of Professional Conduct – [they] may disclose the content of a client-witness’s own testimony precisely to the extent that the client-witness may do so under applicable law.” This means that an attorney must (1) get meaningful informed consent from the client, (2) get affirmative permission from a supervising judge, and (3) follow applicable laws, including the Rules of Professional Conduct for attorneys.

The Court hoped that these three requirements governing disclosure would provide sufficient safeguards to ensure that attorneys are not disclosing anything that his or her client could not. Although, the opinion removes the apparent inconsistency that a client-witness may be able to disclose information when an attorney still may not, despite client consent, it also opens the door to questions of what it takes for an attorney to meet the high burden required for disclosing client-witness testimony.

With the secrecy of grand jury proceedings serving as the touchstone for any analysis of whether the attorney met his or her burden, attempts to avoid any of the requirements will likely result in professional conduct violations, sanctions, or findings of contempt. This is probably so given the explicit reference to the Rules of Professional Conduct and the pre-existing punishments for violations.

In any case, the Pennsylvania Supreme Court removed one layer of secrecy surrounding grand jury proceedings. For this investigation in particular concerning the alleged sexual abuse by clergy members, the opinion comes as a small victory for client-witnesses who may want their stories to be told through counsel after years of abuse and silence.

This article was written with contribution from Sarah Rothermel, 3rd year law student at Widener Law Commonwealth.

[i] https://www.nssh.com/2018/07/what-is-so-secret-about-an-investigating-grand-jury/

[ii] Id.