Office of Disciplinary Counsel v. Fina

Summary

The Pennsylvania Supreme Court affirmed a one-year-and-one-day suspension for prosecutor Frank Fina for violating Rule of Professional Conduct 3.10, which requires prosecutors to obtain prior judicial approval before subpoenaing an attorney to testify before a grand jury about a client. The court held that the rule applies to the prosecutor who directs the subpoena, even if their name is not on the subpoena, rejecting an interpretation that would allow evasion by using another attorney's name. Fina violated the rule by misleading the supervising judge about the scope of his intended questioning of Penn State's general counsel, thereby preventing the judge from performing the required check on prosecutorial power and the attorney-client privilege.

Holdings

1. The rule encompasses the prosecuting body as a whole; a prosecutor cannot avoid the requirement by having another attorney issue the subpoena.
2. Fina violated Rule 3.10 by misleading the supervising judge and eliciting privileged testimony, subverting the attorney-client privilege.

Questions Presented

1. Whether a prosecutor violates Rule 3.10 when the subpoena is issued in the name of another attorney in the office?
2. Whether Fina's conduct in subpoenaing and questioning an attorney without prior judicial approval violated Rule 3.10?

Disposition

affirmed