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Op-ed: Dropping Swallow complaints shows Bar needs retooling

Published February 22, 2014 1:01 am

This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

In Henry VI, a Shakespeare character famously says "First thing we do, let's kill all the lawyers." This line is oft repeated in jest, but others argue that Shakespeare meant this as a compliment to lawyers who instill justice in society.

The practice of law in this country has masterfully remained a self-regulated profession. Although the supreme court of each state generally adopts a code of professional conduct, lawyers, as a whole, are subject to little other regulation over the practice of their profession. This self-regulation has survived precisely because lawyers have, in most instances, been extremely effective at monitoring their own and, thus, dissuading any efforts to regulate the profession from the outside.

The profession's self-regulation is generally conducted in each state by the state bar association. The Utah State Bar serves a two-pronged mission: To represent lawyers in the State of Utah and to serve the public and the legal profession by promoting justice, professional excellence, civility, ethics, respect for and understanding of the law. The Utah State Bar website home page has two prominent links entitled "To Serve the Public" and "To Serve the Profession."

As the uproar over former Attorney General John Swallow grew in early 2013, two different entities filed Bar complaints against Swallow. First, a wide-ranging complaint was filed by the good government group Alliance for a Better UTAH, and a second, more narrow complaint was filed by Traci Gunderson, former head of the Utah Division of Consumer Protection. The Bar dismissed both of these complaints, alleging a lack of persuasive evidence.

The Better UTAH complaint cited specific factual conduct, from media reports, of Swallow's dealings with individuals and businesses that were or could be expected to be targets of state agencies, including the attorney general. Better UTAH, or any ordinary citizen, lacks the kinds of investigative powers entrusted to the Bar, and had requested that the Bar conduct an investigation to determine whether its Rules of Professional Conduct had been violated in any of those instances, and, if not, whether those Rules should be strengthened.

There have been three major investigations of Swallow's conduct prior to and following his election as A.G. Two have been completed, and a criminal investigation is still underway. Where there have been allegations of smoke, investigators have repeatedly found fire. 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.

The Bar's failure to address Swallow's conduct as an attorney suggests that it has focused its attention too prominently on the second half of its mission — serving the legal profession — to the detriment of its first half — serving the public.

We, respectfully, suggest that a re-calibration needs to occur in the Utah Bar's perception of its responsibilities to the public.

While the specific issues surrounding Swallow may suggest that the Code of Professional Conduct should be amended, particularly with respect to attorneys running for state and county offices (where Bar membership is a prerequisite for holding office), it is also imperative that the Bar exercise its authority, when warranted, to, investigate the actions of its members who hold those very offices.

In the case of both complaints filed against Swallow, the Bar maintained that the complainants were responsible for conducting a thorough investigation of the matters alleged before the Bar would even consider acting , a standard too burdensome for ordinary citizens who lack investigative power. 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.

Russell Fericks and David Irvine are Salt Lake City attorneys. Fericks has served on the Bar's ethics and discipline screening panel and as co-chair of the ethics committee. Irvine is on Alliance for Better Utah's board of directors.