January 23, 2013 Office of Professional Conduct, Utah Bar Association Lori W.

Nelson, Bar President 645 South 200 East Salt Lake City, UT 84111 Billy Walker, Senior Counsel 645 South 200 East Salt Lake City, UT 84111 Re: Informal Complaint Against Attorney General John Swallow

Ladies & Gentlemen: The Alliance for a Better UTAH (Better UTAH) is writing on its own behalf and on behalf of the citizens of the State of Utah to file an informal complaint against Attorney General John Swallow (Swallow) with the Office of Professional Conduct (OPC) and to request that the OPC conduct a factual investigation into these matters. Better UTAH believes that the matters addressed herein are of a seriousness that they merit a charging conference and referral to a Screening Panel of the Ethics and Discipline Committee. The Attorney General (the AG) is the chief law enforcement officer of the State of Utah. The AG is an elected position and the qualifications for office include being admitted to practice before the Utah Supreme Court and being a member in good standing with the Utah Bar. (See http://elections.utah.gov/register/becoming-a-state-candidate.) The AG and the AGs office represent the interests of all of Utahs citizens as direct beneficiaries of the AGs representation of the State of Utah and its agencies. Better UTAH files this informal complaint principally on behalf of its members who are citizens of the State of Utah and all other citizens of the State of Utah who are, by this understanding, the intended beneficiaries of the AGs representation of the State and its agencies. Background As you are no doubt aware, several serious allegations have been made against Swallow by Jeremy Johnson (Johnson). These allegations (the Johnson Allegations) are well laid out in articles published by the Salt Lake Tribune so we will not attempt to summarize the allegations here. (See http://www.sltrib.com/sltrib/home3/55598812-200/johnson-swallowrawle-attorney.html.csp.) As you are also no doubt aware, Swallow has denied the Johnson Allegations that would implicate Swallow as being involved in any crime. We leave the question PO Box 521847 Salt Lake City, UT 84152 801.557.1532

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of Swallows involvement in a crime to the investigations of the appropriate authorities and those investigations are beyond the scope of this complaint. We note, however, that should those investigations find any criminal wrongdoing by Swallow, those findings would inevitably impact the investigation we ask the OPC to undertake herein. In responding to the Johnson Allegations, Swallow has publicly stated that: 1. While Deputy Attorney General, he was engaged in the practice of, and was paid for, consulting with private clients while serving as the full-time Deputy Attorney General of the State of Utah; and 2. While Deputy Attorney General, he met with Johnson not for the reasons Johnson alleges but to advise Johnson regarding Johnsons engagement of lobbyists to influence the Federal Trade Commission (FTC) regarding an investigation by the FTC into Johnsons business practices. We refer to these herein as the Swallow Admissions. In a later Tribune article, attorney Allen Young confirms that payments to Swallow were made in connection with a consulting engagement for a private client and states that Swallow was reasonably compensated for what Young estimates must have been easily 100 hours worth of work. This is referred to herein as the Young Allegation. Unrelated to the Johnson Allegations, in May 2012, City Weekly reported that Swallow and a donor privately discussed Swallows ability to set up a private meeting with then-AG, Mark Shurtleff, and Swallows intention, if elected as AG, to move the Division of Consumer Protection under the authority of the AGs office to give the AGs office complete authority over investigations into telemarketing business like that of the donor with whom Swallow was speaking (the Christner Matter). (See http://www.cityweekly.net/utah/article-77-15987campaign-promises.html.) What follows are specific complaints and generalizations that we believe may indicate one or more violations of the Rules of Professional Conduct (RPC) by Swallow. We note, however, that these are merely our speculations of how the publicly available facts and accusations might be interpreted against the RPC and, of course, we invite the OPC to conduct a de novo review of the facts and circumstances surrounding Swallows actions to determine the scope of an investigation and the number and breadth of any potential violations of the RPC. Complaint 1 Under Rule 1.3 of the Rules of Professional Conduct (RPC), a lawyer must act with commitment and dedication to the interest of the client and with zeal in advocacy upon the clients behalf. Any actions by the State or Federal government or governmental agencies against businesses run and owned by Johnson or Christner, or similar businesses run and owned by others, would undoubtedly be taken for the benefit of the citizens of Utah and other clients of these businesses. These might include criminal actions, civil sanctions or shuttering these PO Box 521847 Salt Lake City, UT 84152 801.557.1532

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businesses to protect consumers in the case of violations of consumer protection laws or otherwise. Understanding that the AG is the chief law enforcement officer of the State of Utah and that the AGs office, through its representation of the State of Utah and its agencies, indirectly represents all citizens of the State of Utah, the Swallow Admissions and the Christner Matter suggest that Swallow, while Deputy Attorney General, was violating Rule 1.3 by failing to act with commitment and dedication to the interest of the client in this case the State, its agencies, and, beneficially, the citizens of the State of Utah because his actions on behalf of, and to benefit, his private client(s) and donors would necessarily be to the detriment of his existing client(s). We note, of course, that if the Johnson Allegations are true, the violation of Rule 1.3 is likely even more clear. However, we believe that Swallow is in violation of Rule 1.3 solely based on the Swallow Admissions and his violation is not dependent on the truth of the Johnson Allegations. Complaint 2 The position of Deputy Attorney General is a full-time, paid position. We believe that even if state rules permit outside engagements, as a member of the Bar, Swallow would be violating the terms of Rule 1.3 by pursuing such outside engagements as they would prevent him from discharging his full-time responsibility to act with commitment and dedication to the interest of the client again, in this case, the State, its agencies and, beneficially, the citizens of the State of Utah. The suggestion of the Young Allegation that Swallow committed 100 hours of time to the subject matter of that particular engagement, if true, removes the abstract nature of a potential violation of Rule 1.3 and makes it quite clear since a 100-hour commitment to a single outside client necessarily takes the Deputy Attorney General away from his responsibilities as a full-time employee of the State of Utah. Complaint 3 Rule 1.7 of the RPC states that a lawyer shall not represent a client if the representation involves a concurrent conflict of interest [whereby] the representation of one client will be directly adverse to another client We note that there are other relevant provisions of Rule 1.7 that might apply to Swallows actions. Much as outlined in Complaint 1, above, based only on the Swallow Admissions and not assuming the truth of the Johnson Allegations, we believe that Swallow is in violation of Rule 1.7 because his representation of Johnson or any other private client necessarily created a conflict with his existing public clients - the State of Utah, its agencies and, beneficially, its citizens. Similarly, it is important to note that in the absence of the establishment of a so-called litigation wall in a given matter, all lawyers in the AGs office are deemed proxies for the AG. Since the AGs office was no doubt directly or indirectly involved in any FTC investigations into Mr. Johnsons business practices, and the AGs office specifically represented the Utah Department of Commerce in Johnson-related matters, Swallow was likely imputed with the AG PO Box 521847 Salt Lake City, UT 84152 801.557.1532

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offices representation of the State and its agencies and would have been in direct conflict with that representation by consulting, on a private basis, with Johnson. Complaint 4 Rule 3.5 of the RPC states that A lawyer shall not seek to influence a other official by means prohibited by law. Needless to say, if there is any truth to the Johnson Allegations, Swallow could well be in violation of Rule 3.5. Complaint 5 We ask that the OPC consider and investigate whether Swallow has violated the RPC in any ways not specifically identified herein. For example: Rule 1.6 of the RPC addresses the revelation of client information. If Swallow, in his private representation of Johnson, revealed any information about the AG offices representation of the State or participation in the FTC investigation, Swallow may have violated Rule 1.6. The factual differences between the Johnson Allegations and the Swallow Admissions must give rise to the question of whether Swallow has violated Rule 4.1 of the RPC Truthfulness in Statements to Others. Similarly, we question whether, based on the Johnson Allegations, the Young Allegation, the Christner Matter, or merely the Swallow Admission, Swallow is in violation of any part of Rule 8.4 Misconduct. Specifically, of course, if Swallows actions, even if limited to advising Johnson about engaging lobbyists to influence the FTC investigation, could give rise to a claim that Swallow improperly attempted to influence a government official or agency. Further, the Attorney Generals actions seem likely to give rise to a breach of various state laws, including, without limitation, the Utah Public Officers and Employees Ethics Act or the Utah Administrative Code, both of which prohibit the use of state assets for personal use or for personal financial gain. As this amounts to using one clients resources to benefit another client without the first clients consent, it seems likely to violate the spirit, if not the letter, of the RPC. And finally, we note that Utah consumers, if found to be harmed by Johnsons business practices, could seek recovery under Utahs Consumer Sales Practices Act. However, we believe that damages under the UCSPA could only be sought by the AG on behalf of Utahs consumers and yet Swallow seemingly could be conflicted out of such representation as a result of his prior, private representation of Johnson while Deputy Attorney General.

Apart from the specific request for an investigation into Attorney General Swallows actions, we believe that the Bar Association should also consider the role of, and questions raised PO Box 521847 Salt Lake City, UT 84152 801.557.1532

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by, unlimited campaign contributions to lawyers who stand for elected office or are otherwise government employees. While this issue is implicated in the Swallow matter, it is of a more general nature and concern. The position of Attorney General is as important to the people of Utah as are the state's judges. The person holding this office must serve the interests of justice in a manner that engenders trust and acceptance by adhering to the highest ethical standards of the legal profession. Utah has no limits on campaign contributions or contributors, and a review of the financial disclosure statements filed by candidates for Attorney General representing the major political parties for several years shows contributions in the tens of thousands of dollars, even hundreds of thousands of dollars from persons, companies, or business alliances whose activities raise questions of compliance with state and federal law. By receiving such campaign contributions, there is at least an appearance, if not a more direct linkage, that those who make such contributions are expecting favorable treatment by the Attorney General. These inordinately large campaign contributions raise a very direct question of conflict of interest. They would be deemed to be unquestionably corruptive of judges. As such, Better UTAH specifically requests that the Utah State Bar consider and specifically address whether its Rules of Professional Conduct governing conflicts of interest are applicable to campaign contributions made to lawyers who are government employees or candidates for public office. If they are not, Better UTAH asks that the Bar address this serious issue, and promulgate rules and standards which will preclude the evidently-accepted practice, or the perception, of a "pay-to-play" system in our State and, in particular, in the Attorney Generals office. We thank you in advance for your consideration of these matters and reiterate our belief that these matters are of a seriousness meriting a charging conference and referral to a Screening Panel of the Ethics and Discipline Committee. We are, of course, available to discuss these matters further should you wish to do so. Respectfully submitted, The Alliance for a Better UTAH

Maryann Martindale Executive Director

PO Box 521847 Salt Lake City, UT 84152 801.557.1532

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