May 21, 2013

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Courage shown in speaking up against John Swallow [KSL]

May 14, 2013 by Leave a Comment

The following is an op-ed piece that I wrote for KSL as posted this afternoon.

 

John Swallow

SALT LAKE CITY — I’m sure there was a moment when Traci Gundersen wondered if making a bar complaint against Utah Attorney General John Swallow was a wise step for her career.

As far as I can tell, she’s the only person who has been inside the attorney general’s office and has come forward to call “foul” on the attorney general.Unlike others who have publicly accused Swallow of wrongdoing in recent months, Gundersen is unique in that she is not under indictment, in jail or anonymous. In other words, unlike other Swallow accusers, she seems like an honest person with nothing to gain by the claim. Rather, she is a reputable and upstanding attorney who worked in the Utah attorney general’s office during Mark Shurtleff’s term.

Not only has she worked in the attorney general’s office — where she was when Swallow was first brought on by Shurtleff to be groomed as his successor — but her work there caught the attention of others in state government and she was lured away to a job as director of the Utah Division of Consumer Protection. Her job, from 2010 to until last week, when she left the office voluntarily, was to protect Utahns against scam artists and pyramid schemes.

A longtime employee of the state and a well-respected attorney, she must have known that accusing the state’s chief legal officer of violating the attorney/client relationship — one of the most important tenets of the legal profession — would put her on dangerous footing.

Unlike Jeremy Johnson, who is under indictment, accused of a litany of scams, Gunderson is an attorney in good standing with the Utah Bar.

Unlike Marc Sessions Jenson, who is currently interned at the Utah State Prison for failing to pay $4 million in restitution for scams, Gundersen has nothing to gain by attacking Swallow.

But she does have everything to lose.

By taking her complaint straight to the Utah Bar, a body that has the ability to discipline, disbar or impose sanctions on any member of the Utah Bar — including Swallow — she added yet another dimension to the layers of Swallow’s difficulties. Swallow will now need to undergo review by the Utah Bar Association.

With everything to lose, and nothing to gain, Gundersen’s bar complaint, filed quietly and without fanfare, is an act of true courage.

What makes Gundersen’s charge against Swallow so compelling is that it lies in an event that Swallow does not deny. On the contrary, in an interview with Doug Wright, Swallow said, on the air, that he was “proud” of the phone call.

The event in question is a recorded conversation between Swallow and what City Weekly described as “the owner of a telemarketing sales floor” by the name of Aaron Christner.

Recorded while Swallow was still running for attorney general — and still collecting checks for his campaign — Swallow is heard promising to take over the Utah Division of Consumer Protection — housed in the Utah Department of Commerce — and move it into the attorney general’s office.

What makes the call suspect is that at the time the Division of Consumer Protection already had a $400,000 civil penalty imposed on Christner and his business partner Ryan Jensen, as well as an order to cease and desist operations. Further, the Division of Consumer Protection was Swallow’s client, which Swallow readily acknowledged during the call. As his client, Swallow was under a duty not only to tell them that he had been contacted by Christner, the target of their efforts, but to consult with the division on how it would want to proceed.

In the real world, clients give direction on how to proceed with a case to their attorneys, not the other way around. Sure, attorneys know the law, but they cannot act without consulting with their client.

To collect on the penalty, the division referred the case against Christner, and the $400,000 penalty and cease and desist order, to Assistant Attorney General Jeff Buckner, who filed a case with the 2nd District Court in late 2011. However, Christner and Jensen were difficult to find, and throughout early 2012 the division continued to look for them.

Meanwhile, in defiance of the cease and desist order, Christner and Jensen opened another telemarketing company, the last of several proxy companies they are accused of using to hide alleged scams.

Meanwhile, during this time the Republican nomination battle to replace Shurtleff as attorney general was in full swing, and an associate of Christner’s suggested that he should get in contact with Swallow, specifically to attend a fundraising breakfast at Mimi’s Cafe. Christner took the advice to heart and called Swallow, then chief deputy attorney general under Shurtleff with oversight of “the civil divisions and all litigation involving the state of Utah.”

After a few preliminary questions, including Christner informing Swallow that he was being pursued by the Division of Consumer Protection for $400,000 in civil penalties, Swallow offers to help Christner sit down with Shurtleff and then bashes into the Division of Consumer Protection, his own client:

“(T)he way Utah’s so dysfunctional right now, is the client is the Department of Commerce and Consumer Protection, and that is something we, uh, control or even influence greatly, it’s because the work for the governor’s office, and now when I’m attorney general you know, this is kind of confidential, I will try to restructure it so consumer protection is under the attorney general (office) and the attorney general has more authority over those investigations. In fact, complete authority over that,” said Swallow, according to the complaint.

If you can’t tell, Swallow is telling Christner that while Swallow can’t do anything now — because Swallow’s client is the Division of Consumer Protection and they’re calling the shots — once he’s in charge, he’ll flip the relationship and start telling them who they can and cannot pursue.

It’s like putting the fox in charge of the hen house. The lawyer will take over the client’s organization and start calling the shots.

But that’s not even the rub, not yet. Swallow never told his client — the Division of Consumer Protection — that he had had a conversation with the guy that they had been chasing. The first they heard about it was from the newspaper when City Weekly published the recording of the conversation online.

If you’re looking for a rule — and I know you are — look no further than Rule 1.4 of the Rules of Professional Conduct, which requires that an attorney “inform” the client and “consult with the client about the means by which the client’s objectives are to be accomplished.”

Clearly, Swallow has not consulted nor informed his client of relevent and important communications with an accused malfactor.

Worse, Swallow is expressing an interest in the outcome of the case, a clear violation of another rule, that of Rule 1.8(i):

(i) A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client.

In this case, Swallow has been introduced to Christner through a fundraising function, has explained that when he is elected he will attempt a take-over of the government agency that is chasing Christner, and seeking political favor for the action.

If exchanging political contributions for a desired outcome in violation of the law is not a proprietary interest, I don’t know what is. Whatever it is, it isn’t honest.

And the complaint goes on.

Gundersen has now done what no honest person has yet done: she’s made a claim and backed it up by filing charges with the appropriate body. She’s put her name, and her reputation, on the line against a powerful man with powerful friends. Whether it results in moving the Utah Bar to take action against Swallow remains to be seen, but what is not in doubt is her courage.

I hope more like her will step forward in coming weeks and months. It’s time for the attorney general’s office to move out from under the cloud of scandal and restore its integrity, and I fear that we won’t see it happen while the current occupant retains his office.

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Filed Under: Characteristics of Lawyers, Leaders, News Round Up Tagged With: , , , , ,

Appointing versus Electing the Attorney General

March 19, 2013 by Leave a Comment

Senator wants Utah to look at appointing attorney general The Salt Lake TribuneTo avoid the influence of cash on Utah’s chief law enforcement office, Senator Todd Weiler wants the legislature to look into amending the Utah  constitution to allow for an appointed attorney general. With Utah’s long history of flawed AGs, perhaps it’s an idea we should take seriously.

 

During the Utah Legislative Session, ended last week, members of the legislature were largely taciturn on the Swallow scandal, preferring to reserve judgement until the FBI investigation into Swallow wraps and the facts are clear. Regardless, the legislature passed two pieces of legislation addressing, if indirectly, the Swallow scandal.

The first, Senate Bill 83 sponsored by Senator Todd Weiler, addressed employees of the Utah Attorney General’s office accepting outside consulting work–as Swallow has said he did for a Nevada cement project.

The second bill, pushed through on the last day of the session, though with none of the opposition that other last minutes bills have seen in the past, was Senator Peter Knudson’s Senate Bill 289. It aimed to move investigatory power from the Attorney General to the Lieutenant Governor when elections complaints were filed against the AG. While prompted by the Alliance for a Better Utah complaint about Swallow to the Lieutenant Governor’s office, both legislators and staffers went to lengths to point out that the bill was to remove a weakness in the law, not target Swallow.ada cement project after appointment by then Attorney General Mark Shurtleff.

Appointment by Supreme Court or Governor is a good idea

money-and-justice-scalesEven with these two changes in the law–one putting the same restrictions on political appointees as exist on state employees and the other preventing the AG from investigating himself–Weiler believes further changes may be necessary to avoid a repeat of the same problems.

“The discussion is: As an elected official in a statewide race, we’re asking these candidates to run around and ask people for political donations,” Weiler said to the Salt Lake Tribune. “If someone was appointed, we’d take that entirely out of the process. We wouldn’t have the chief law enforcement officer asking people for money.”

In an 2011 proposal for the same, State Senator Steve Urquhart  said that it could get better attorneys into the AG’s office:

“[...] maybe we would get a better-qualified attorney than we tend to get and we might get an attorney with an approach that is consistently on the merits of the issues rather than on the basis of politics or something else.”

Currently, only seven states have appointed attorney generals. The Salt Lake Tribune lists those states as Alaska, Hawaii, Maine, New Hampshire, New Jersey, Tennessee and Wyoming, citing the National Association of Attorney Generals.

6TXZ_Sup_Ct_Lg

In Tennessee, the state Supreme Court appoints the attorney general, which I find particularly interesting, especially given how Utah’s justices join the bench. Unlike many states, Utah’s Supreme Court justices are not elected but serve ten-year renewable terms after appointment by the governor and confirmation by the state senate. As result, Utah’s Supreme Court has avoided much of the politicization that plagues other states. Not beholden to campaign donations, Utah tends to have justices who are better known for the legal acumen than their political connections.

This kind of process can prove useful for an AG appointment in two ways:

  1. Appointment by the Governor: similar to selection for the Utah Supreme Court, selection of the AG would be based on merit and subject to an “advise and consent” process by the state senate. The process could be further depoliticized by including a vetting process by the Utah Bar Association.
  2. Appointment by the Supreme Court: already less beholden by virtue of their appointment and independence as a separate branch of government, an appointment by the Supreme Court would carry additional levels of review and detachment from the political process, allowing selection of a person without need of review of political bona fides.

There’s no way that politics will be completely removed from the process, but an appointment–either by the governor with consent of the senate or by the Supreme Court–would remove the politics from the Utah Attorney General’s office.

 Swallow opposes, makes “Bandwagon” argument

SwallowNot surprisingly, Swallow, with nothing to fall back upon if he loses his job, does not support the idea. To the Salt Lake Tribune

“The attorney general is the guardian of the public interest and should be independent and provide legal advice based on the law instead of political pressure,” Swallow said. “Utah is one of 43 states where the attorney general is elected by popular vote and this process ensures the attorney general is the lawyer for all Utah citizens.”

 

In case you missed that, Swallow implied that there’s less political pressure on someone who needs to raise hundreds of thousands of dollars to get elected (as he did) than there is on someone who is appointed. (Swallow also wins Logical Fallacy of the Day with his “Bandwagon” appeal to popularity as a validation of his position).

Not the first time…

220px-Mark_ShurtleffAs I noted earlier, this isn’t the first time that someone has suggested we look at moving to appointment of the AG. Given Shurtleff’s history.  Urquhart proposed looking into the idea in 2011.

“I also think it’s much cleaner if the guy making prosecutorial decisions isn’t out soliciting money from people who could be impacted by those decisions,” Urquhart said in a Salt Lake Tribune article at the time.

Then Attorney General Mark Shurtleff opposed the idea, touting the independence that comes with election. Of course, he had his own problems. During his term, Shurtleff was regularly pilloried by the City Weekly for receiving contributions from questionable donors, including the same ones who helped get Swallow elected and some of which are now under federal investigation.

Paul Rolly has also in his column told a short history of Utah’s attorney generals, and few escape some kind of scandal. With Utah’s history, perhaps it is time we change how we think about the office of the attorney general. It’s cliche to talk about lawyers,politicians, sharks, snakes and leeches in the same breath, but do we need to add to the taint of corruption and make the cliche real?

In 1998, the Utah Supreme Court was moved into...

In 1998, the Utah Supreme Court was moved into the Scott M. Matheson Courthouse building. (Photo credit: Wikipedia)

I like Weiler’s request, echoing Urquhart’s suggestion in years past, that the legislature look into changing the Utah constitution to provide for a more independent attorney general uncorrupted by the taint of political contributions. Utahns should be able to look to their attorney general as their advocate, regardless of whether they have been able to donate to his campaign.

Swallow has been accused by three businessmen of soliciting donations in return for protection. Regardless of the truth of the accusations, changing the nature of the selection of the attorney general would remove the possibility that prosecutorial decisions are tainted by money.

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Filed Under: Characteristics of Lawyers, Utah Legislature Tagged With: , , , , , , , ,

In which lawyers become strippers…and news becomes tabloid trash.

September 14, 2011 by Leave a Comment

In the category of weird legal news, we have this: “Lawyer turned stripper to pay the bills.”

(No, we don’t have pictures to prove it, and by “it” I mean that she is a stripper, or a lawyer, either, for that matter…and just like that, 99% of the readers who found this blog while Googling “stripper lawyers” have stopped reading.)

Is the economy that bad? Or is First Coast News trying to roll out the stripper-with-a-heart-of-gold story to bump their ratings?

I’m going to guess the latter. But in any case, you decide. Here’s “Carla,” explaining her dire straights:

“Did I ever think I’d be taking my top off for rent money? No. I was in my mid-30s and had never danced before,” said Carla, who asked that we use her stage name and withhold her identity and some personal details. “As a little girl, I never thought to myself, ‘I just want to grow up and be a stripper,’ or, ‘All I ever wanted to do in life is climb in the lap of sweaty stranger and take my top off.’

“But, with our economy the way it is, especially in smaller cities … you strip or you starve,” she said.

Strip or starve…strip or starve… Well, when you put it that way, it’s obvious!

On the other hand, some people have jobs and have money—otherwise, who is paying to watch you shake it?

Apparently, strip clubs are a recession-proof business.

Even in the middle of a recession, when money is tight for pretty much everyone, managers at Déjà Vu say they are still seeing more than 1,000 customers a week.

“I would say we are doing very well considering what’s been going on with the downfall of other companies,” [Déjà Vu manager] Martinez said.

But I digress. Back to “Carla” and First Coast News:

As her prospects grew dim, she went back to school to earn a master’s degree, hoping to bolster her credentials. But her financial aid came in lower than expected, her credit was battered and she struggled to find part-time work in her new town to keep her afloat.

Can you feel your empathy levels rising? Because First Coast News is piling it on pretty thick.

Everything is happening to her, beyond her control.  She is the victim of less financial aid than she planned,  low credit (due to late payments or no payments to creditors…the only reason credit drops), and not finding a job in a “new” town (which, as she notes in the story, is a “small” town). But none of that is her fault. It’s the economy, it’s the credit agency, it’s the lack of jobs, it’s government, it’s everyone but her!

She was at rock bottom.

“I went around to see if could get a job as cocktail waitress, but there was not a single retail or waitress job.  No one was hiring, except for the topless places,” she said.  “It was an act of desperation.”

She started out serving drinks as a waitress, but moved quickly to dancing “because that’s where the money is, and that’s what I needed.”

Uh, huh. Can you see the gun to her head?

Pardon me if I’m a tad less than sympathetic here. The details of Carla’s practice, her pre-recession spending habits,  and how she put herself in a place where she couldn’t afford her lifestyle are obscured by the pasties limited facts provided.

Even with what is given, I can’t figure out why Carla resorted to a career she finds so objectionable. As an “act of desperation,” I expect dumpster diving, joining the Army, moving to a bigger city, or even declaring bankruptcy so you can start all over.  Between practicing law and working retail there are a lot of employment options, even in this economy.  At least, she could have left the small town for a bigger market. Whether you stay in law or try your luck elsewhere, well, that’s up to you. But to go to something you find as distasteful you find stripping?

“Sometimes it sucks, it’s degrading and I hate it, but it is necessary right now and I’m glad I have the option of doing it,” Carla said.  “My parents and a few friends know and they were horrified at first. But now they are proud of me for sucking it up and doing what I have to do.”

Turning to stripping as an act of desperation? Sounds more like a lack of imagination or effort.

If nothing else, maybe this will end up being a cautionary tale to upcoming law students preparing to take on enough debt to finance a small home. Be careful how much debt you take on, because some day you might end up in an “act of desperation,” and you never know what that might be.

I’m just sayin’: do we really need one more lawyer stripper in this world?

For that matter, do we really need one more sensational story from the news?This isn’t journalism, First Coast News–its salacious tabloid trash.

Despite Carla’s admonition (last paragraph) to never look down on someone in the “industry,” as she calls, it, I’m more embarrassed that someone as educated as her can’t find a better way to make a buck than taking it off.

[VIA]

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Which is worse on the economy?

August 24, 2011 by Leave a Comment

Feel free to elaborate on your choice, and why it is a loaded question, in the comments.

In the meantime, chew on this:

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That’s been on the cover for a year now…when will it expire?

August 9, 2011 by Leave a Comment

 

Filed Under: Legal Profession Tagged With: ,

Here’s hoping she doesn’t mind.

June 23, 2011 by 1 Comment

Filed Under: Legal Profession Tagged With: ,

That’s a lot of weed…

June 15, 2011 by Leave a Comment

L.O.L of the day is brought to you by the Namby Pamby:

Attorney: According to our office manager, you are $5,000 short for the retainer payment.

Client: But I already paid you five! Do you know how much weed I had to sell to get that??!?

This is why you want to become a lawyer.

via Don’t tell me that « The Namby Pamby.

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