In Re: 40th Statewide IGJ (majority)Annotate this Case
This appeal centered on a challenge to the practice of requiring private attorneys who may be privy to confidential information related to a grand jury investigation to commit to maintaining the secrecy of all information they may acquire regarding the grand jury. The 40th Statewide Investigating Grand Jury was convened in 2016. Under the authority of the 40th Statewide Investigating Grand Jury, subpoenas requiring the production of documents were recently issued to the Dioceses of Harrisburg and Greensburg (“Appellants” or the “Dioceses”). Their counsel requested a copy of the notice of submission that the Office of the Attorney General (the “OAG”) had provided to the supervising judge. The supervising judge replied that he would furnish a copy of this notice to counsel, but that counsel first would be required to sign and submit appearance form, which included an oath or affirmation to keep all that transpired in the Grand Jury room secret (under threat of penalty of contempt). Counsel declined to accept these terms, however, and Appellants lodged a joint motion to strike the non-disclosure provision from the entry-of-appearance form. They argued that the requirement of secrecy was not authorized by the Investigating Grand Jury Act, both as to the obligation being imposed upon counsel and, alternatively, in terms of the breadth of that duty. The Dioceses’ lead contention was that the secrecy requirement of 42 Pa.C.S.A. Section 4549(b) did not apply to private attorneys, positing that, “[b]y its terms,” Section 4549(b) applies only to persons who are “sworn to secrecy” -- i.e., those who are required in practice to sign an oath of secrecy -- such as “Commonwealth attorneys, grand jurors, stenographers, typists, and operators of recording equipment.” The Pennsylvania Supreme Court concluded an attorney would will be privy to matters occurring before an investigating grand jury shall be sworn to secrecy per the requirements of the Investigating Grand Jury Act, either via an appropriately tailored entry-of-appearance form or otherwise. The obligation of confidentially generally extends to all matters occurring before the grand jury, which includes, but is not limited to, what transpires in a grand jury room. A lawyer otherwise subject to secrecy, however, may disclose a client’s own testimony to the extent that the client would otherwise be free to do so under applicable law. Such disclosure is also subject to the client’s express, knowing, voluntary, and informed consent; the Rules of Professional Conduct; and specific curtailment by a supervising judge in discrete matters following a hearing based on cause shown.