Opinion: Courage shown in speaking up against John Swallow [KSL]

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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