Now Shurtleff faces bar complaint, but will it get traction?
By Robert Gehrke
The Salt Lake TribuneFirst published Apr 25 2014 07:32PM
A complaint alleging attorney misconduct against former Attorney General Mark Shurtleff has been in the hands of the Utah State Bar for months, but — as with complaints against Shurtleff’s successor — it remains unclear what, if anything, the bar is doing to investigate.
The complaint, filed Jan. 16 by Paul Svendsen, a self-described "recovering attorney" and real estate developer, alleges Shurtleff took gifts and trips from jailed businessman Marc Sessions Jenson, who had struck a plea deal that put him under the supervision of Shurtleff’s office.
Svendsen said Jenson’s gifts and involvement with Shurtleff represent a clear conflict of interest and a serious breach of attorney ethics.
The bar’s Office of Professional Conduct responded a month later, saying it was conducting a preliminary probe of the complaint and asking for evidence supporting the allegations.
Svendsen responded March 5 with several court filings reiterating the public allegations against Shurtleff.
"The substantial amount of evidence available in this case is unusual because impermissible conflicts of interest are, by their very nature, entered into in private," Svendsen wrote. "If the evidence offered here does not warrant a full investigation by the Office of Professional Conduct, it is unclear what level of evidence would ever suffice."
Svendsen said Friday that, due to the bar’s confidentiality restrictions, he could not comment on the complaint or if the bar had done anything further to investigate the allegations. Sean Toomey, spokesman for the Utah State Bar, also declined to comment.
Jenson’s attorney, Marcus Mumford, confirmed that to date he and his client have not been contacted by the bar. Shurtleff said Friday that he has not been asked to respond to the allegations in Svendsen’s 3-month-old complaint, and doesn’t expect that he will.
If Shurtleff is required to respond, the Utah attorney general’s office would likely represent him in the matter, as it is representing his handpicked successor, former Attorney General John Swallow, since the complaint arises from their official duties.
The bar previously dismissed two complaints against Swallow. One was submitted by Traci Gundersen, the former director of the Utah Division of Consumer Protection, claiming Swallow’s conversations with a potential donor who was a target of a division investigation violated his duty to the state agency. The second, filed by the Alliance for a Better Utah, a progressive nonprofit group, was more sweeping.
Maryann Martindale, executive director of alliance, said she was frustrated with the lack of transparency and communication from the bar after the group filed its complaint.
"It was almost like they expected us to do the investigation, and I don’t think that’s the role of someone who files a complaint," she said. "It was almost as if — if we didn’t wrap this up with a big bright package and big pretty bow — they couldn’t be bothered. … It didn’t appear to us that they even investigated."
Despite dismissing both of those complaints against Swallow, the bar took the unusual step of confirming in March, after a Utah House investigative committee issued its final report on Swallow, that it had an open investigation of Swallow’s conduct.
"The [Office of Professional Conduct] has had an active investigation of John Swallow since the initial allegations of wrongdoings appeared in the media," the bar said in a statement at the time. "This investigation is independent of any bar complaints against Mr. Swallow. The OPC will review the House report, as well as the pending results of Salt Lake and Davis counties’ investigations."
Presumably, the Office of Professional Conduct could also consider another report, this one done for the attorney general’s office by former federal Judge Paul Cassell and former federal prosecutor Francis Wikstrom, that condemned Shurtleff’s conduct in the Jenson case.
If the bar determines an attorney violated its code of conduct, it can give the lawyer a written admonition or reprimand, a suspension, or revoke his or her license to practice law.
Based on news reports, emails and interviews with senior attorneys in the attorney general’s office, Cassell and Wikstrom detailed how Jenson — who was charged with securities violations — was able to conduct back-channel negotiations directly with Shurtleff and ultimately was given, at Shurtleff’s direction, a "sweetheart" plea deal.
After the deal was struck, while Jenson remained under the supervision of the attorney general’s office, Shurtleff took at least two trips to Jenson’s villa at a posh Southern California resort on Jenson’s dime. There they discussed potential political contributions and a deal for the movie rights to a book Shurtleff was writing — though Shurtleff said he rejected the offers.
Shurtleff countered that the Cassell-Wikstrom report was "one-sided, incomplete" and a waste of money, relying on the "jailhouse lies of a convicted felon." While Shurtleff couldn’t respond to the allegations because of an ongoing criminal investigation, he said he was "anxious for the day when I get to fully set the record straight."