Egg on its face: the Utah Bar and the Swallow Complaints

Utah Attorney General John Swallow resigns
Utah Attorney General John Swallow resigns
Utah Attorney General John Swallow speaks during a news conference Thursday, Nov. 21, 2013, in Salt Lake City. Swallow announced Thursday that he is stepping down amid multiple investigations of bribery and misconduct that have hounded him ever since he took office at the beginning of the year. (AP Photo/Rick Bowmer)(Credit: AP)

Has the Utah Bar failed in its duty to the public to self-regulate?

That’s a question a pair of lawyers have asked in the wake of the John Swallow scandal, still unfolding as prosecutors in Davis and Salt Lake Counties continue their investigation into John Swallow, Mark Shurtleff, and their associates. Wrote Russell Fericks and David Irvine in the Salt Lake Tribune:

The Bar’s refusal to act on the two Swallow complaints is not a convincing demonstration of its ability and willingness to self-regulate. The legal profession in Utah, and the public it serves, deserve better.

Just to recap, briefly, the case that Fericks and Irvine see against the Utah Bar’s handling of its piece of the Swallow scandal:

Utah State Bar
A screen shot of the Utah State Bar website, touting its dual mission: to serve the public and to serve the legal profession. Are they serving either by failing to take action on John Swallow?

In 2013, the Alliance for a Better Utah (ABU) and Traci Gunderson, separately, filed complaints against then Utah Attorney General John Swallow.   Both complaints were dismissed by the Utah Bar, citing a lack of persuasive evidence.

Later that year, on the eve of the release of a report on a damning investigation by Lieutenant Governor’s office and just a month before the Utah House Special Investigator started to release its own findings, Swallow resigned.

District Attorneys Sim Gill and Troy Rawlings have announced that they expect their investigation to continue for another three to six months, and you can bet it’ll be that long or longer.

With the revelations into the malfeasance by Swallow, and his predecessor Mark Shurtleff and campaign consultant Jason Powers, continuing to unfold, should the Utah Bar be at all concerned that they failed to pass judgement on two complaints against a member of their body?

Should members of the public question the Utah Bar’s willingness to police its members when political forces are at play?

In response to Fericks’ and Irvine’s critique of the Utah Bar, Curtis M. Jensen, president of the Utah State Bar, and Terrie McIntosh, chair of the Utah Supreme Court’s Ethics & Discipline Committee. published a thorough account of the history of the Utah Bar, its roll in regulation of attorneys in Utah, and the complaint review process.

I recommend you read it.  It looks at the role of the Utah Bar in balancing the individual rights of attorneys with a duty to the public to regulate legal profession ethics.

As of March 6, 2013, John Swallow is an active member of the Utah Bar.
As of March 6, 2014, John Swallow is an active member of the Utah Bar.

Ultimately, however, it says nothing about the two complaints against Swallow, giving nothing in the way of explanation for why the body tasked with regulating its members did not in this case regulate Swallow.

As Fericks and Irvine note, “Swallow was found to have forged documents, erased digital information, failed to cooperate with investigators, offered protection to predatory lenders, and lied on his campaign financial disclosure forms.”

It may have taken the Utah legislature several million dollars to show the level of malfeasance in Swallow’s history, and indeed, I don’t think we have heard the last of it, but the allegations put forward by Gunderson and the ABU had more than sufficient evidence to merit action by the Utah Bar.

If they didn’t why hasn’t the Utah Bar taken action, even yet? With the litany of malfeasance a matter of public record now, what level of evidence must the Utah Bar see before it takes action?

Originally published at Publius Online.

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