Frank Fina attends a news conference at the Philadelphia District Attorney's office Jan. 27,what is acg fuse 2014, in Philadelphia. (AP Photo/Matt Rourke)

Disciplinary charges against

Frank Fina

stemming from his handling of the investigation into three former Penn State administrators should be dismissed, a hearing committee has recommended.

The three-lawyer committee, which presided over the disciplinary proceedings against Fina this summer, issued its report and recommendations last week. The 17-page report found that the Office of Disciplinary Counsel failed to make the case that Fina broke a disciplinary rule prohibiting attorneys from subpoenaing other lawyers to testify about their clients.

Related story:

Disciplinary Proceedings Against Ex-Prosecutor Fina Off to Contentious Start

The panel's decision is only a recommendation, and it will be up to the Pennsylvania Supreme Court to make any final disciplinary decisions.

Fina became well-known for handling the case against convicted child molester Jerry Sandusky, and he also helped build the case against

three Penn State officials

who were later convicted of child endangerment charges in connection with Sandusky’s conduct. It is Fina's conduct during that grand jury investigation that is at the center of the disciplinary proceedings.

The charges stem from an October 2012 hearing into whether state prosecutors could call former Penn State general counsel

Cynthia Baldwin

to testify before an investigating grand jury. Baldwin had appeared before the investigating grand jury when the former university officials, Tim Curley, Gary Schultz and Graham Spanier, had testified.

In the subsequent disciplinary proceedings, the ODC argued that Fina broke Rule 3.10 when he allegedly improperly pushed to have Baldwin testify before the grand jury, and then later improperly questioned her about things that should have been confidential under attorney-client privilege.

The hearing committee's report, however, said Fina could not have been found to have run afoul of the rule, since the ODC failed to prove that Fina had issued the subpoena asking Baldwin to testify.

"The subpoena at issue does not bear respondent's name as the requesting deputy attorney general, but that of his superior, Bruce Beemer. The ODC did not offer any evidence that respondent issued the subpoena to Ms. Baldwin or even caused it to be issued," the report said. "There is no proof that respondent committed the action of subpoenaing Ms. Baldwin. Nor is there proof that Rule 3.10 is nevertheless applicable to respondent despite the fact that he did not issue the subpoena. Without such proof, the ODC cannot make out a violation of Rule 3.10."

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Baldwin also faces disciplinary charges stemming from the investigation, but in October, a hearing committee panel also recommended that the charges against her should be dropped,

finding

that she disclosed all relevant conflicts of interest when it came to her representation of the former Penn State officials.

The disciplinary proceedings against Fina got off to a contentious start in June, with several hostile exchanges between attorneys and a witness, and one of Fina's lawyers saying that a statement made by disciplinary counsel was “defamatory and scandalous.”

Disciplinary counsel had presented its full case during the hearing in June. Although the office entered numerous exhibits, it called only one witness—attorney and legal ethics lecturer at Yale, Larry Fox. Fox told the panel that, according to transcripts, it appeared Fina had “hoodwinked” the supervising grand jury judge about Baldwin's role, and began inappropriately eliciting testimony that implicated the rights of the Penn State administrator.

Fina’s attorney, Dennis McAndrews, however, made repeated objections that much of Fox’s testimony was speculative, arguing that no fact witnesses had been called to testify regarding the facts disciplinary counsel sought to enter in the case.

McAndrews on Wednesday said the ODC should withdraw the complaint.

"The panel made the only decision they could have in this case, where disciplinary counsel literally produced no witnesses related to any fact about Mr. Fina's appropriate conduct," McAndrews said. "In 40 years of litigation experience, I've never had a case where the party with the burden of proof provided no fact witnesses, zero. Every element of the offense was not proven, and could not be found as proven by the panel."

The ODC did not return a call seeking comment.

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