V I R G I N I A: BEFORE THE VIRGINIA STATE BAR DISCIPLINARY BOARD IN THE MATTER OF FRANK GERALD FINA VSB DOCKET NO. 20-000-118449 MEMORANDUM ORDER AND OPINION THIS MATTER came before the Virginia State Bar Disciplinary Board (“Board”) for a hearing via video conference on September 25, 2020, on the Amended Rule to Show Cause and Order of Summary Suspension and Notice of Hearing entered on August 31, 2020 (the “Rule to Show Cause”) to which was appended the Order of Suspension entered by the Supreme Court of Pennsylvania Western District on February 19, 2020, suspending for one year and one day effective February 19, 2020, the right of Respondent Frank G. Fina (“Respondent”) to practice law in the Commonwealth of Pennsylvania. The hearing was held before a panel of the Board consisting of Sandra L. Havrilak, Acting Chair; David J. Gogal; Donita M. King; Alexander Simon; and, Reba H. Davis, Lay Member (collectively, the “Board Panel”). The Virginia State Bar (“Bar”) was represented by Elizabeth K. Shoenfeld, Senior Assistant Bar Counsel (“Senior Assistant Bar Counsel”). The Respondent was represented by Bernard Joseph DiMuro, who on behalf of Respondent filed a seventy-three-page Answer to Order to Show Cause. At the onset of the hearing, the Chair stated the following: On March 12, 2020, the Governor of Virginia declared a state of emergency regarding the novel coronavirus (COVID-19) pursuant to Executive Order 51. The state of emergency has been in place since March 12, 2020 and continues indefinitely, until revised or lifted by the Governor. Therefore, because COVID- 19 has rendered it unsafe for public bodies to assemble in person, the Virginia State Bar Disciplinary Board is meeting via teleconference, with access provided to the public to observe. In addition, the meeting will be recorded, will be available for viewing on the Virginia State Bar’s website, and it will otherwise comply with Virginia’s Freedom of Information Act regarding electronic 1 meetings, found in the Virginia Code, Section 2.2-3708.2, as supplemented by Section 4-0.01.g of Virginia House Bill 29, Chapter 1283 (2020). The court reporter, after having been duly sworn, reported the hearing and transcribed the proceeding. The Chair polled the members of the Board Panel as to whether any of them was conscious of any personal or financial interest or bias which would preclude any of them from fairly hearing this matter and serving on the panel, to which inquiry each member responded in the negative. All legal notices of the date and place were timely sent by the Clerk of the Disciplinary System (“Clerk”) in the manner prescribed by Part 6, § IV, ¶ 13-12(C) of the Rules of the Supreme Court of Virginia (the “Rules”). In accordance with Part 6, § IV, ¶ 13-24 of the Rules, the purpose of the hearing was to provide the Respondent with an opportunity to show cause, if any, by clear and convincing evidence, as to why the same discipline that was imposed upon him by the Supreme Court of Pennsylvania should not be imposed by the Board. The Board took Judicial Notice of the Rule to Show Cause, which included as an attachment the Order of Suspension of the Supreme Court of Pennsylvania, suspending Respondent from practicing law in the Commonwealth of Pennsylvania one year and a day and received them into evidence, along with the Concurring Statement of Justice Wecht, the Concurring and Dissenting Statement of Justice Dougherty, and the Report and Recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania. The Board received into evidence the Bar’s Exhibits 1-7 and the Respondent’s Exhibits 1-27, though Respondent’s Exhibits 13, 14, and 20 were not received as expert opinions. The Respondent testified on his own behalf and also called as a witness his Pennsylvania counsel, Dennis McAndrews and Joseph McGettigan. No other witnesses testified on behalf of the Respondent or the Bar. 2 By Order dated February 19, 2020 the Pennsylvania Supreme Court suspended Respondent from the practice of law in Pennsylvania for a year and a day for an asserted violation of Pennsylvania Rule of Professional Conduct (“Pa. RPC”) 3.10, which states in its entirety: A public prosecutor or other governmental lawyer shall not, without prior judicial approval, subpoena an attorney to appear before a grand jury or other tribunal investigating criminal activity in circumstances where the prosecutor or other governmental lawyer seeks to compel the attorney/witness to provide evidence concerning a person who is or has been represented by the attorney/witness. Paragraph 13-24 sets forth the following four grounds under which the Board may decline to impose reciprocal discipline or may impose lesser discipline than that which was imposed by the original jurisdiction: 1. The record of the proceedings in Pennsylvania clearly shows that such proceedings were so lacking in notice or opportunity to be heard as to constitute a denial of due process; 2. The imposition by the Board of the same or equivalent discipline upon the same proof would result in an injustice; 3. The same conduct would not be grounds for disciplinary action or for the same or equivalent discipline in Virginia; or, 4. The misconduct found in the original Jurisdiction would warrant the imposition of substantially lesser discipline in Virginia. Respondent asserted that all four of the above exceptions, individually and collectively, applied to this matter and warranted relief from the Board in the form of dismissal or lesser discipline. The Board finds, by clear and convincing evidence, that grounds 2, 3 and 4 exist, warranting dismissal of the Rule to Show Cause and Order of 3 Summary Suspension based on its finding that none of the elements of Respondent’s purported violation of the Pennsylvania Rules of Professional Conduct exist in the record of this matter. FACTS ESTABLISHED IN THE RECORD A. BACKGROUND OF OAG INVESTIGATION 1. Frank Fina was at all times relevant to the underlying events a member in good standing of the Bar of the Commonwealth of Pennsylvania and employed by the Office of the Attorney General of the Commonwealth of Pennsylvania (OAG) as Chief Deputy Attorney General (CDAG). Respondent was acting in his official capacity as CDAG, and the act at issue per the Office of Disciplinary Counsel's (ODC) Petition for Discipline (“Petition”) occurred while Respondent was acting in the course of his duties.1 Prior to the discipline in question, Respondent was never subject to discipline of any type by any jurisdiction or bar.2 2. In 2009, the OAG began an investigation into allegations of serial child molestation by Jerry Sandusky, a retired assistant coach of the football team of the Pennsylvania State University (“Penn State”).3 3. In 2011, the investigation of Sandusky was still ongoing and aided by the use of the Statewide Investigating Grand Jury (“SWIGJ” or “grand jury”). By then, the investigation included inquiry not only into Sandusky’s behavior, but into who else was aware of Sandusky's transgressions.4 1 Resp. Ex. 5 at FINA 000493-498; Resp. Ex. 18 at FINA 001742. 2In the Matter of Frank G. Fina, Memorandum Opinion No. 20-mc-103 (D. Del. July 20, 2020), at p. 15; Resp. Ex. 19, Report and Recommendation of Disciplinary Board, July6, 2019, at FINA 0001757. 3 Id. at FINA 000497-498. 4 Id. at FINA 000503. 4 4. Because much of Sandusky’s abuse took place on the Penn State campus, the investigation began to inquire of Penn State employees and to seek any evidence of Sandusky’s conduct.5 5. In 2011, Respondent was directly supervising the OAG's use of the SWIGJ in the Sandusky inquiry. He reported to the Executive Deputy Attorney General of the Criminal Division, Richard Sheetz. Sheetz in turn reported to the First Deputy Attorney General, William Conley, who reported to the Attorney General, Linda Kelly.6 B. THE SWIGJ SUBPOENAES THREE PENN STATE ADMINISTRATORS 1. The SWIGJ issued subpoenas for the January 2011 appearance of Gary Schultz, a retired Penn State Senior Vice President; Timothy Curley, the Penn State Athletic Director; and Joseph Paterno, the head football coach.7 The OAG served the subpoenas for Curley, Schultz, and later Penn State’s President Graham Spanier at Penn State through Ms. Cynthia Baldwin, General Counsel of Penn State.8 2. Simultaneously, the SWIGJ also issued and served a subpoena duces tecum to the University for any and all documents and materials related to Sandusky.9 3. Spanier directed Baldwin to accompany Schultz and Curley as Penn State General Counsel to their appearances before the SWIGJ. Paterno elected to be represented by separate counsel.10 4. Baldwin advised Schultz and Curley of President Spanier's direction. She then advised them that she represented them only in their capacity as University 5 Id. at FINA 000436-437. 6 Id. at FINA 000500. 7 Id. at FINA 000503. 8 See generally Resp. 8; Resp. Ex. 5 at FINA 000439, 475 and 1298. 9 Resp. Ex. 5 at FINA 000436-437. 10 Resp. Ex. 5 at FINA 000437-440; Resp. Ex. 8 at FINA 1298. 5 officials, not as individuals. She further advised them that they could select an attorney of their own if they wished, that they enjoyed no confidentiality as to the conversations that they had with her, and that Penn State was her client.11 5. Curley and Schultz, who had long known Baldwin, understood and accepted those facts, and Baldwin accompanied them before the SWIGJ.12 6. After Curley and Schultz testified before the SWIGJ in January of 2011, President Spanier was subpoenaed to appear before the SWIGJ, as well.