by ACross (2018-12-11 09:55:51)
Edited on 2018-12-11 10:00:51
In reply to: Although the report was Nassar-focused, it’s clear USAG posted by Bruno95
He was not merely "one of USAG's lawyers." He was, until he took the ND job, USAG's outside general counsel. It is almost certain that USAG was his client, that he was the originator and the relationship lawyer and the responsible and supervising lawyer at the firm for the client. He was outside general counsel for USAG for many years and held that role, it appears, at a time when USAG adopted, with the advice out its outside counsel of its no report policy. USAG should waive privilege.
I said he was described as their chief counsel. My understanding is he served as an outside GC for an organization that had no in-house lawyer.
The Indy Star looked into this very question and reached out to Swarbrick. I am not sure why the outside general counsel would "move in and out" of working with his client.
In written responses to questions submitted by IndyStar, Swarbrick, who also was chairman of the Indiana Sports Corp from 1992 to 2001, declined to answer specific questions about his advice to the organization, citing attorney-client privilege. But he did discuss his role generally. He also declined an IndyStar request for an interview in 2016 on the subject.
The issue has sparked message-board discussion, including this comment from ndnation.com: "The core questions are, what did Swarbrick know and what did he do in response to that knowledge?"
Before becoming Notre Dame's athletic director in 2008, Swarbrick played important roles in bringing the NCAA headquarters to Indianapolis and in attracting the Super Bowl to Indianapolis in 2012. He also helped run the 1987 Pan American Games.
Swarbrick characterized his former firm, then called Baker & Daniels, as the entity representing USA Gymnastics and giving advice. He described himself as someone who moved in and out of working with the organization from 1984 to 2008.
"We know Swarbrick was one of USAG’s lawyers and at one point was described as their chief counsel."
To be clear, my view is the current facts demonstrate that:
* Swarbrick was the chief lawyer involved in the development of faulty abuse reporting policies;
* USAG, with Swarbrick's counsel, maintained those policies after early coach-abuse allegations were reported;
* Swarbrick, as the outside general counsel until taking the ND job, was specifically aware of reports of abuse by coaches in member organizations; and
* Swarbrick's CYA approach extended beyond his tenure and governed the organization's continued non-responses to further abuse allegations.
Absent a specific explanation to the contrary, naming someone else who provided the advice, this is the record established by two lengthy independent investigative reports, the Indy Star work, Steve Penny's characterization of the role of counsel, and the public description of Swarbrick's role, since scrubbed from his ND bio.
I don't believe that's understatement. I believe that's more than enough to require due diligence on ND's part, and I would be surprised if that diligence ended well for Swarbrick.
I will cop to straddling in one sense. I would be relieved to learn that Swarbrick did overstate his role, and that Scott Himsel had taken on the client relationship well before Swarbrick left. I want the truth to be that an ND alum and ND officer bears no blame for this scandal. But if that is not the truth, then what we want doesn't matter. Everyone bearing any responsibility should be held to corresponding account.
on ND's part would yield enough of the truth for them to take decisive action, but couldn't/wouldn't he just assert the same work product doctrine and client privilege objections he already has? I'm not an attorney and maybe the "probable cause" for termination of employment standards aren't as high as for a civil action in court.
By the the way, I agree with your last paragraph but most especially the last sentence on it.
She’s not the flustered attorney from the swimming dep. If he improperly invokes the privilege in response to basic questions about who provided the advice and did the work in the public record, that would speak for itself.
on legal advice? Was it Penny? A predecessor?
"Let's see what ND does about this. My guess? Nothing." The comment was 44 weeks ago.
Still hasn’t materialized.
And I really don’t know how Savvy kept his name out of Penny’s mouth when Penny got hauled in front of Congress last spring.
But the leak is going to be bigger than Savvy's finger.