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Utah taxpayers foot bill for part of A.G. Swallow’s defense

First Published Aug 01 2013 08:25PM      Last Updated Oct 21 2014 09:40 am

State taxpayers are footing the legal bill for Utah Attorney General John Swallow in his defense of an ethics complaint before the Utah State Bar.

Swallow is being defended by lawyers from his office from allegations that he violated rules of conduct that govern attorney-client relations concerning a phone call he had last year with a Utah businessman facing a $400,000 fine for violating state consumer protection laws, the office confirmed Thursday.

Joni Jones, an assistant attorney general and chairwoman of the office’s ethics committee, said taxpayer-funded legal representation is appropriate because the complaint arises out of Swallow’s official actions last year when he was chief deputy attorney general.

"It’s my understanding that if the Bar complaint involves allegations against [an assistant attorney general] for actions he or she took in his or her official capacity, acting as an attorney on a case that he or she was handling for the office, then yes, the defense would be provided by someone in the office," Jones said.

David Irvine, a Salt Lake City attorney associated with Utahns for Ethical Government and the Alliance for a Better Utah, said while he couldn’t cite legal authorities, having state attorneys represent Swallow in the Bar case didn’t seem appropriate since it involves alleged ethical violations.

"The state doesn’t authorize its agents to act unethically or to act unlawfully and if the claim is that Swallow or anyone associated with that office or any other state office had violated a law, I don’t see the state handling that person’s defense," he said. "Where the issue is an attorney’s ethical lapse … I don’t see that’s something the state ought to be spending its resources on to represent the individual."

Ethics allegation » The complaint was filed with the State Bar by Traci Gundersen, the former director of the Utah Division of Consumer Protection. She alleged Swallow violated ethical standards when he had conversations with a business owner facing a $400,000 fine for breaking telemarketing laws.

Gundersen, an attorney, cites Swallow’s contact in April of last year with businessman Aaron Vincent Christner, who called the then-chief deputy attorney general about the fine he had been assessed and which the state had filed a lawsuit to collect. Christner recorded the call in which Swallow offered to put him together with then-Attorney General Mark Shurtleff to discuss the case.

Christner also mentions that he had been advised to attend a fundraising breakfast for Swallow’s campaign for attorney general. The recording also has Swallow telling the businessman that, if elected attorney general, he plans to move the consumer protection division into his office.

Gundersen’s complaint alleges Swallow violated the attorney-client relationship with the Division of Consumer Protection by not disclosing the discussion over settling the case against Christner and his business partner.

Gundersen on Thursday declined to comment on the appropriateness of Swallow being represented by state attorneys.

"I would leave it up to the Bar to decide that," she said.

Jones said it is normal for attorneys to have preliminary discussions about settling a lawsuit. In this case, Christner was not represented by an attorney at the time when he talked to Swallow and there was nothing more than a mention of his case with no follow-up talks, she said.

"It’s typical for an attorney to talk to the adverse attorney about settlement without conveying that information to the client," according to Jones, who said Swallow had given her permission to state her view of the merits of the complaint.

Gundersen declined comment on Jones’ remarks, citing Bar confidentiality rules. But her complaint also points out other alleged violations of attorney conduct, including that Swallow hadn’t reacted appropriately to Christner’s suggestion he could be making a campaign donation, and that Swallow had called her division "dysfunctional" and said he wanted to bring it under his authority. Those and other actions or comments were "misconduct," the complaint states.

Another complaint » The liberal-leaning Alliance for a Better Utah also filed a complaint against Swallow with the Utah State Bar, this one in part involving Swallow’s contacts in 2010 when he also was chief deputy attorney general with St. George businessman Jeremy Johnson.



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Audio: John Swallow talks to Aaron Christner about the businessman's fines for consumer protection violations.