Swallow probe: Choosing a special counsel could be tricky
It promises to be a high-stakes investigation into one of the biggest political scandals in recent Utah history. The firm or attorney who lands the job can expect plenty of publicity, invaluable experience and thousands of billable hours.
But that wasn't enough to entice more lawyers to vie for a shot at serving as special counsel in the looming investigation of Attorney General John Swallow's three alleged election violations.
The grand total of applications the state received for the job: two.
No one's sure why the response was so paltry. Maybe it was a lack of advertising. Maybe the conflict-of-interest minefield proved too difficult for potential bidders to navigate.
"We were really hoping for more," said Mark Thomas, chief deputy for the lieutenant governor's office. "We wanted to have a good number to choose from."
That's why the state will reissue its Request For Proposal (RFP) for another 14 days and double its efforts to persuade qualified lawyers and law firms to apply.
Initially, officials were optimistic. The state's Division of Purchasing had received several phone calls from interested parties. More than a dozen potential bidders had explored the RFP online. Several lawyers and law firms from neighboring states had shown interest.
But when Thomas received a phone call from purchasing officials with a final count, he was floored. Why had there been so few?
"Maybe it was an issue of conflicts of interest," Thomas said. "A lot of law firms had donated during November's election one way or another. Maybe they felt like they couldn't submit a proposal because they gave a donation to Swallow or his opponent."
The process Utah has undertaken to hire a special counsel to investigate three remaining charges of election violations by the state's top cop is fraught with potential for conflict, national experts said.
Rather than appointing someone to do the job, the lieutenant governor's office is soliciting bids. The responsibility of hiring a special counsel typically falls to the attorney general's office, but due to a clear conflict of interest and a new law rushed through the Legislature this year, the attorney general's office will not be involved this time.
The idea, officials said, was to have law firms and individuals compete for the contract, thereby allowing the state to select the most-qualified and cost-effective option.
According to the RFP, an ideal candidate would have knowledge of and experience with Utah election law, estate planning, trust law and tax law and an understanding of the state's political terrain. The special counsel also would have to remain unflinching in the media spotlight.
But being too familiar with politics could compromise the integrity of the probe, as could any political involvement or pre-formed opinions about the case, experts said. On the other hand, so too could ignorance of the political process or a desire to grab headlines.
It's a double-edged sword.
"You want someone who's independent of the political process, who has been uninvolved and has as tenuous a relationship [with the parties]as possible," said Jerry H. Goldfeder, a law professor at University of Pennsylvania who served as special counsel to the New York attorney general's office in 2007. "But you also want someone who understands the political world and doesn't see criminality where it isn't."
If that sounds like a difficult combination to find, it is.
Choosing an attorney from out of state may mitigate some problems with conflict, suggested former U.S. attorney Joseph diGenova, who has served as special counsel in Washington, D.C.
"Anyone in the state of Utah automatically has some kind of conflict of interest," diGenovasaid."There's no perfect way to do this. It's a dicey situation and you have to avoid as many appearances of conflict and impropriety as possible. The easiest way is to pick someone from out of state."
Though state officials would not release the identity of the two applicants, Thomas said there had been some interest from outside Utah. But if an outsidercomes from a state in which there is preference given to in-state contractors, the lieutenant governor's office would be statutorily obligated to favor a Utah competitor.
Utah's preference law, which was amended this year, traditionally addresses contracts for construction or manufacturing, not legal work.
Thomas said the lieutenant governor's office has accounted for the fact that most applicants will likely have some conflicts of interest. The RFP asks all bidders to include a detailed list and explanation of potential conflicts.
Background checks including political donation history and party involvement will be run on top applicants.
Thomas offered another reason the applicant pool may have been so shallow: The state did little to publicize the contract.
Because the Division of Purchasing alerts law firms and attorneys via email when a relevant RFP is posted, Thomas said, the word appeared to be getting out.
As the RFP is reposted Friday, Thomas said, the lieutenant governor's office may do more to advertise in law circles both in and out of state.