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SALT LAKE CITY — Utah Attorney General John Swallow faces a second ethics complaint filed with the Utah State Bar, this one alleging he discussed settlement negotiations with a telemarketer against whom the state Division of Consumer Protection had imposed a $400,000 fine.
Former consumer protection director Traci Gunderson contends Swallow neither informed nor obtained permission from the division, which is represented by the attorney general's office in legal matters, to conduct preliminary settlement talks with the company.
"It is concerning to me as an attorney that Mr. Swallow does not acknowledge or possibly even recognize his ethical duties to a client of his office," Gunderson wrote in the complaint filed last Friday.
"In a private law firm setting, conduct of this nature by a client's attorney would be cause for termination. Unfortunately, that is not an option available to the Division of Consumer Protection."
Gunderson, a former assistant attorney general, worked as consumer protection director until last Friday. The division, which answers to the governor's office, and the attorney general's office, have butted heads over the years regarding whom or whom not to investigate.
Swallow's office issued a statement Wednesday saying the complaint is without merit.
"John Swallow did not violate any bar rules, and the complaint confuses the rules between a private law firm and a public law firm. The attorney general can and should hear complaints from the public. However, no meeting actually took place and no settlement offers were made or accepted," according to the statement.
The statement also says disclosing the complaint to the media violates the bar's rules of ethics.
In January, the Alliance for Better Utah filed a complaint with the state bar, alleging Swallow violated rules of professional conduct in his dealing with indicted St. George businessman Jeremy Johnson.
Johnson claims Swallow helped broker a deal to pay off a powerful U.S. senator to thwart a federal investigation into Johnson's Internet marketing company.
Todd Wahlquist of the Utah State Bar Office of Professional Conduct would not comment on either of the complaints.
Gunderson's complaint stems from an April 7, 2012, recorded a telephone conservation between Swallow and Aaron Christner, co-founder of Mad Cow Productions and Level 11 Mentoring. Swallow served as chief deputy attorney general and was seeking the Republican nomination for attorney general at the time.
The consumer protection division was unaware of the discussion between Swallow and Christner until a March 31, 2012, story in City Weekly, according to Gunderson.
Consumer protection had issued Christner and business partner Ryan Jensen a cease and desist order along with a $400,000 fine in March 2011 for soliciting customers without being registered. The division referred the case to an assistant attorney general to collect the fine.
Christner and Jensen were fighting the fine when someone named "Rob" advised them to attend a Swallow fundraising breakfast at Mimi's Cafe.
Christner called Swallow "to chat with you and see if there's, like, anything you can do?" according to a transcript of the call.
Swallow advised Christner to get a lawyer and "then, then, then I'd be more than happy to, to um, you know, have you sit down with the attorney general.
I'm not the attorney general yet, but that's not, I'm not over those areas yet."
Swallow tells Christner that Attorney General Mark Shurtleff can see if there's a way to work things out with the lawyers in his office who represent consumer protection. Swallow also says Utah is "dysfunctional" because the governor's office oversees the consumer protection division.
"And now when I'm attorney general, you know, this is kind of confidential, but I'm going to try to restructure it so that consumer protection is under the A.G. and the A.G. has more, more authority over those investigations, right, in fact, complete authority over that."
During the conversation, Christner told Swallow he once had a lawyer but could no longer afford one. Swallow tells Christner that the attorneys handling consumer protection cases work for Shurtleff.
"And so it's easy for, you know, if you know, if you have an attorney — or if you don't, you know, set up a meeting with Mark Shurtleff."
Gunderson's complaint says that at no time did the consumer protection division authorize its legal counsel — the attorney general's office — to reduce or settle the $400,000 fine.