'Spokesman-Review' Attorney Has Ethical Conflict, Journo Charges

By: Mark Fitzgerald Investigative journalist Tim Connor has filed a grievance with the Washington State Bar Association against the lawyer who represents The Spokesman-Review and other Cowles family business interests in Spokane, Washington -- including a development company involved in the controversial River Park Square downtown mall.

As the newspaper's media lawyer, the grievance says, Duane Swinton has aggressively fought for journalists' access to information -- but as lawyer for the Cowles' River Park Square LLC, he has worked just as aggressively to keep information about the project secret.

Connor, who has made investigations into River Park Square a cornerstone of his online news site, www.camasmagazine.com, charged in the filing that Swinton and his law firm Witherspoon, Kelley, Davenport & Toole law firm "have repeatedly failed to address and resolve a conflict of interest" that he says violates the bar's ethics rules.

"As events unfolded, it should quickly have become clear to Mr. Swinton and Witherspoon that River Park Square's interest in secrecy (as evidenced by several confidentiality agreement drafted by Mr. Swinton and imposed on government agencies and their contractors) was deeply in conflict with the Spokesman-Review's journalistic responsibilities and expressed public service mission," the grievance states, with parentheses in the original. "Mr. Swinton and Witherspoon should have either declined the RPS representation or withdrawn as counsel for the newspaper. Instead, they've continued to represent both clients (RPS and the Spokesman-Review) even as they've engaged in activities that are clearly adverse to the expressed mission of the newspaper and, at least as importantly, the public service values incumbent in the profession of journalism."

In a telephone interview Monday evening, Connor said he was prompted to file the grievance by one conclusion of the Washington News Council examination of the Spokesman-Review's coverage of River Park Square. In a report released in early May, the council concluded that the newspaper did not thoroughly investigate the project, and in fact suppressed some financial information that was "potentially unfavorable" to the developers. It also said the Cowles family's "involvement in news stories it deemed sensitive was inappropriate."

One recommendation of the report was that the newspaper sever its ties with Swinton and his law firm. "No matter how they might try to avoid conflicts, Duane Swinton and the firm of Witherspoon, Kelley project the perception of a conflict of interest, particularly with respect to stories involving the Cowles Co.'s interests," the council wrote.

"If they had taken the recommendation of the Washington News Council, I probably wouldn't be filing this," Connor said.

Spokesman-Review Editor Steven A. Smith told readers in a column that he had decided to keep Swinton as the paper's lawyer.

For one thing, Smith wrote, "he is absolutely the best media lawyer with whom I have ever worked."

Smith also said the paper had resolved any conflict of interest issues, and that there were "no good alternatives" to representation by Swinton and his firm. "If there were, I would have made the switch four years ago," he wrote. "Nearly every major legal firm in the state of Washington played a part in the RPS legal debacle. We're in no position to use some of the best media lawyers in the state for the same conflict-of-interest reasons."

In a telephone interview, Swinton said he does not believe he violated the bar association's ethics rules.

He said he was "a little surprised" Connor was making his filing public since grievances are "generally treated as confidential," but that he isn't complaining it has been disclosed.

The grievance is the first complaint ever filed against him in 30 years as a lawyer, Swinton said, and is all the more unusual because Connor was never a client.

In the 14-page complaint with 11 exhibits, Connor asked the bar association to determine if Swinton and his firm received "written consent" or waivers from the newspaper and a Cowles-owned television station in 1997 when they began representing the Cowles in the River Park Square development. "If, in fact, a waiver from the media clients was obtained, was the consent adequately informed?" the grievance asks.

Swinton declined to say whether or not he had obtained written consent in the matter.

"To the extent I'm dealing with clients, I'd feel uncomfortable about talking about the dealings with them," he said. Swinton says he did not want to discuss arrangements he has with clients.

According to the bar association's Web site, a grievance is evaluated by the Office of Disciplinary Counsel "to determine if it contains facts that may show a violation of the Rules of Professional Conduct and what, if any, further action is warranted." If the office decides it warrants further action, it is sent to a review committee of the Committee of the Disciplinary Board.

"Grievances filed with our office are not public information when filed, but your grievance may become public," the Web site says.

Connor said he hoped the grievance would settle the matter of whether the lawyer and his firm have a conflict of interest in representing the newspaper and business interests of the Cowles.

"The conflict has been long-standing," Connor said. "It's been there and it's been publicized -- but it's never been resolved."