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Op-ed: Recent events show Utah needs ethical lawyer as attorney general

By Linda F. Smith

First Published Feb 05 2014 05:12 pm • Last Updated Feb 06 2014 11:42 am

Given the recent publicity about John Swallow and Mark Shurtleff as attorneys general and as candidates, it may be useful for Utahns to understand the legal ethics that apply to government attorneys.

The essence of the allegations have been that Shurtleff and Swallow "gave big donors ... extraordinary access in exchange for campaign contributions and special favors." It is alleged Shurtleff personally directed a lenient plea for Marc Sessions Jenson (who hosted Shurtleff and Swallow at his villa) and directed his A.G. attorneys to pursue a criminal case against New York businessmen who Jenson alleged had swindled him and his brother. (A.G. attorneys had investigated and found nothing illegal in this business deal gone bad.)

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Jenson has alleged that Shurtleff shook him down, seeking campaign money and an investment in his book. John Swallow, as a private attorney, represented various payday lenders; payday lenders were major contributors to Swallow’s campaign (albeit secretly through non-profits), and Swallow promised pay day lenders that he would be ready to help them stave off federal regulation once he was elected.

The idea that an A.G. would act to limit prosecution of certain persons who had been campaign contributors or would act to advantage former clients is an anathema to the ethical code that governs lawyers and government lawyers in particular.

Rule 1.7 of the Utah Rules of Professional Conduct provides that a lawyer must not represent a client if there is a significant risk that the representation will be materially limited by the personal interest of the lawyer. This is called a conflict of interest. Thus, if the A.G. candidate had collected substantial campaign contributions from a particular individual or industry, the A.G. likely has a personal conflict of interest regarding that individual or industry. Once elected, that A.G. should not be involved in representing the state about the issues of interest to that individual. If issues about that individual or industry arise, the A.G. must wall himself off from any decisions in these cases and let other attorneys in the office handle the matters.

Rule 1.11 regarding Conflicts of Interest for Government Employees provides more specific guidance. Subsection (d) states that a government lawyer must not participate in any matter in which the attorney participated personally and substantially while in private practice. Thus, the A.G. should not be involved in any legal work for the state of Utah that relates to a matter that he handled for a client while in private practice.

When these two rules are read together, the public should be confident that their elected public attorneys (A.G.s, D.A.s, city attorneys) will be completely uninvolved in any governmental legal decision if that individual attorney has a personal interest in that decision or had previously represented a client regarding that issue.

The A.G. is the attorney for the state of Utah, charged with neutrally advising the executive branch and enforcing the laws of the state. The A.G. should not (must not) be a garden-variety political hack promoting policies or causes that his contributors or former clients favor.

One can only hope that the political parties and the voters will return to the days when candidates for this highest law enforcement office were experienced and ethical lawyers rather than politicians.

Linda F. Smith is a professor and clinical program director at the S.J. Quinney School of Law at the University of Utah.

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