State regulatory office dismisses complaint against Basalt town attorney
September 8, 2017
A Colorado regulatory office that investigates allegations of professional conduct by attorneys has dismissed a citizen's complaint against Basalt Town Attorney Tom Smith.
The Attorney Regulation Counsel for the Colorado Supreme Court informed Basalt resident Mary Kenyon on Aug. 15 that it wouldn't take further action on her request for an investigation of Smith and was closing the matter.
Kenyon, a government watchdog, claimed Smith had a conflict of interest when he represented Mayor Jacque Whitsitt and town clerk Pam Schilling when they were questioned last year by 5th Judicial District Attorney Bruce Brown.
Kenyon filed a complaint with Brown's office in May 2016 against Whitsitt and Schilling for failing to retain texts, which she claimed violated the Colorado public records law. She also asked Brown to investigate if the texts — made before and during the 2016 municipal election — were intentionally deleted.
As part of his office's efforts to determine if charges were warranted, Brown questioned Whitsitt and Schilling with Smith present. He said he was the personal attorney for the women. He billed the town government for about three hours of work, he said. He felt it was appropriate because the allegations involved a town matter and were related to a civil lawsuit between the town and Kenyon on records retention.
Brown determined charges weren't warranted, so Smith didn't represent them in an actual criminal proceeding. If charges had been pursued, he said he wouldn't have represented them.
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Kenyon contended Smith had a conflict of interest representing the town officials as their personal attorney while also employed as the town attorney. However, no one in the town government questioned Smith's representation of Whitsitt and Schilling as inappropriate, which weighed into the decision by the Attorney Regulation Counsel.
"Without having received a complaint concerning the alleged conflict of interest directly from Mr. Smith's client, it is the opinion of this office that we lack sufficient evidence to meet our burden of proof to establish that Mr. Smith violated any specific rule of professional conduct in providing legal service to Ms. Whitsitt or Ms. Schilling in connection with the criminal investigation involving the records of the Town of Basalt," the regulatory agency said in a letter sent to Kenyon and Smith. "Therefore, we are closing this matter and will take no further action on your request."