"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.
Johnson has said Swallow helped set up a meeting with another Utah businessman, the late payday loan entrepreneur Richard Rawle, to formulate a plan to stall a federal investigation into Johnson's online mass marketing company called I Works. Johnson has alleged the plan include paying tens of thousands of dollars to people close to Senate Majority Leader Harry Reid, while Swallow says he only put the two businessmen together so Rawle could help Johnson hire lobbyists.
In a complaint to the State Bar, the Alliance for a Better Utah alleges a dozen violations, including multiple failures by Swallow to report business interests or income and says he may have misused state resources and campaign funds. The also says Swallow may have attempted to conceal his interest in his family company P-Solutions and payments from Rawle, the money from which came from Johnson as part of the plan to thwart the federal investigation.
It is unclear who, if anyone, is representing Swallow in that complaint. Jones said she and another assistant attorney general, David Sonnenreich, were working on the Gundersen complaint.
Jennifer James, an attorney with the private law firm of Clyde Snow & Sessions, said the firm only represent Swallow in several other ongoing investigations but not for any of the complaints before the State Bar.
The attorney general's office has said no funds were being used to pay Swallow's legal bills from Clyde Snow & Sessions.
Swallow, in a June 18 memo to the Utah Legislature, said he had not been asked by the Bar to respond to the Alliance complaint.
Maryann Martindale, executive director of the Alliance, also said her group had no contact with the Bar since filing its complaint in March and did not know who was representing Swallow in that case. But she said the representation of the attorney general by his office in the Gundersen complaint raises questions.
Representation • "At first blush it seems a little inappropriate to be defended by the office, especially when he is the supervisor for all the attorneys defending him," she said.
Jones said attorneys in the office have routinely defended others who have been named in lawsuits in which monetary damages are sought. It even defended Mark Shurtleff when he was attorney general and faced a Bar complaint, she said.
Sean Toomey, the communications director for the Utah State Bar, the supervisory body over attorneys in Utah, said Supreme Court rules do not allow the Bar to comment on complaints pending before it.
Besides the Bar complaints, Swallow is facing investigations by the Department of Justice in cooperation with state investigators, the Davis and Salt Lake county attorneys, the lieutenant governor's office and a special committee of the Utah House of Representatives.