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Legal work for UNM kept secret

Copyright © 2018 Albuquerque Journal

In the summer of 2016, amid a congressional panel’s national probe into whether fetal tissue was being sold at a profit to researchers, University of New Mexico regents reached out to a local private law firm to explore a related matter.

The university’s Health Sciences Center had for years used fetal tissue as it researched ways to improve outcomes for premature babies, and such work had elicited some community criticism.

So the regents contracted Sutin Thayer & Browne to provide the regents “advice and counsel regarding issues of compliance with federal law,” including one specifically related to fetal tissue acquisition, according to the Aug. 30, 2016, engagement letter obtained by the Journal.

“We understand the sensitive nature of this work, and will keep our relationship and work confidential to the maximum extent possible,” Sutin attorney Jay D. Rosenblum wrote in the letter.

More than a year after records show Sutin halted work on UNM’s behalf, much remains unknown – even to some regents.

Sutin charged UNM nearly $43,000 for about five months of service, records show. Costs included work by a forensic accountant subcontracted by Sutin.

But Sutin never filed a written report, and the state’s largest university continues to closely guard the details of the firm’s work – redacting all references to its specific nature in letters and invoices provided to the Journal in response to a public records request, citing attorney-client privilege.

Not even the chancellor of UNM’s Health Sciences Center, Dr. Paul Roth, knows what, if anything, Sutin gleaned.

Roth said Sutin attorneys never talked to him during the engagement – a project he said he knew nothing about until hearing some people make reference to it afterward.

But the Journal has obtained unredacted copies of the Sutin invoices, which show the firm did have repeated contact with the U.S. House Select Investigative Panel on Infant Lives, staff for Republican U.S. Rep. Steve Pearce, and a pro-life group that had denounced UNM’s fetal tissue research practices and ties to abortion providers.

Regent President Rob Doughty

Regent President Rob Doughty

Regent President Rob Doughty, the lone UNM signatory on the Sutin agreement, did not respond to multiple Journal messages last week.

Investigating concerns

The Sutin engagement came amid some public outcry about UNM’s research.

Congress’ Republican-led Select Panel and others had questioned the university’s relationship with Southwestern Women’s Options abortion clinic, which had provided fetal tissue to UNM.

In June 2016, the Select Panel chair, Rep. Marsha Blackburn, R-Tenn., said the tissue transfers violated state law and called on New Mexico Attorney General Hector Balderas to investigate. HSC denied her assertions, as did members of the Select Panel’s Democratic minority who wrote Balderas the following month with concerns Blackburn was “using the power of Congress to chase unfounded allegations of anti-abortion extremists.” (Balderas’ office has since announced that it found no criminal violations.)

On Aug. 29, 2016, Doughty emailed fellow regents to say he had given “much thought” to the public and national attention UNM’s fetal tissue research had attracted. He said he determined it was in the board’s best interest to retain private counsel, who would “be tasked with ensuring that the board has all information reported on this topic and that said information is complete and accurate.”

In the email obtained by the Journal, Doughty wrote, “While I have no reason to doubt the testimony of the HSC staff, I believe it is incumbent on the board of regents to be exhaustive in our concern about this issue.”

In an emailed response to Journal questions about Sutin’s work, Regent Brad Hosmer said he had responded to Doughty’s Aug. 29 message by thanking the board president for the initiative. Hosmer said his past experience as inspector general of the U.S. Air Force showed him “the best way to clear an allegation is a thorough investigation.”

The Sutin engagement letter – which, like Sutin’s invoices, was addressed to Doughty’s private Albuquerque law office – was dated the next day. Doughty’s signature represents approval by “Regents of the University of New Mexico,” according to the document.

Hosmer said he recalls no full board vote on the matter.

Both Hosmer and Regent Suzanne Quillen say Doughty’s Aug. 29 email marked the first time they were notified of a possible outside legal contract.

However, by that point, Sutin had already logged more than 25 hours of work for UNM over a month’s time, according to invoices. That included an Aug. 6, 2016, meeting with Doughty, board Vice President Marron Lee and then-regent Jack Fortner, the bills show.

Five months earlier, the same trio, plus then-Student Regent Ryan Berryman, voted for the controversial restructuring of the Health Sciences Center’s governing board – which had included five regents and two community members – and instead vested HSC governance with an all-regent board of three. The move, which Quillen and Hosmer opposed, also put Roth more firmly under the UNM president’s authority.

Bob Frank, UNM’s then-president, said the regents did not consult with him about hiring Sutin, though he knew about it.

“As I recall, the issue was: Was there a smoking gun that they didn’t know about? In other words, was there something that wasn’t coming forward that was going to come out and haunt the university, and they felt a need to do extra diligence to ensure that didn’t exist,” Frank said.

UNM was already paying a Washington-based attorney from the McDermott, Will & Emery law firm to interface with the Select Panel on its behalf. Frank said he did not think anything was amiss given his conversations with the Washington lawyer and UNM’s in-house counsel.

But some regents, he said, “were very suspicious about it.”

Fortner, who made the initial call to Sutin, told the Journal that Pearce had previously told him the Select Panel had evidence UNM was participating in buying and selling fetal tissue. Fortner said he saw it as “due diligence” on the regents’ part to get an independent review. Lee did not respond to Journal messages.

Pearce contacts

Sutin’s bills reference a number of emails and a conference call “with regents” over the course of the job, but Quillen said she was never included in Sutin’s fetal tissue project communications.

None of the invoices make specific mention of communication with Quillen, Hosmer, Regent Tom Clifford or Berryman.

But they do reflect 14 contacts with staff for Steve Pearce, the Republican congressman from southern New Mexico, including multiple emails and phone calls with Pearce’s then-Chief of Staff Todd Willens.

In an emailed statement, Pearce spokeswoman Keely Christensen said the office wanted “transparency” on the UNM issue.

“The office’s communication with the Select Panel and the University were to ensure that all freedoms and liberties of taxpayers were upheld,” she said.

Pearce’s office confirmed that its staff helped set up a meeting between the regents and the Select Panel at the regents’ request, but the regents never showed up on the scheduled date.

Sutin’s invoices also note multiple contacts with the New Mexico Alliance for Life, an anti-abortion nonprofit and vocal opponent of UNM’s fetal tissue research, and state lawmaker Rod Montoya, a Republican representative from Farmington who has complained about what he considers a lack of transparency at UNM regarding its fetal tissue research.

Montoya confirmed having phone conversations and a meeting with one Sutin attorney, who he said reached out to him at the regents’ suggestion. Asked last week by the Journal if he had information about UNM’s Health Sciences Center, Montoya said, “No. Just questions. Just things I thought should be looked into.”

Records show Sutin also had regular contact with Judith Wagner, a forensic accountant it subcontracted on Sept. 20, 2016. The arrangement called for an investigation, though UNM redacted the description of Wagner’s focus in documents provided to the Journal.

The final service billed to UNM is a half-hour spent Jan. 5, 2017, reviewing and analyzing the Select Panel’s final report – which was publicly released the previous day – and emailing Doughty.

‘Failure to launch’

Hosmer said he asked University Counsel Elsa Cole multiple times last spring for documents related to Sutin’s engagement, including a written report. He said she responded via email on May 12, 2017, to all regents, attaching a letter from Sutin.

Hosmer did not provide the document, but related it to the Journal as saying “essentially that when the U.S. House of Representatives Select Panel was not funded for the 115th Congress, ‘…there was no longer a body to which to respond…’ and accordingly Sutin’s work stopped at that point without a final report or summary.”

“I found that interesting,” Hosmer said, “since up to that point, the Sutin work was presumably for the regents, not for the U.S. House of Representatives Select Committee.”

Quillen told the Journal she and Fortner had also asked for a report, directing inquiries to Doughty and Lee.

“Any engagement and expenditures of this nature deserves a full written report outlining the results of the investigation to not only the full board of regents but the university at large,” Quillen said in an emailed response to Journal questions.

Roth at HSC said he can only guess that the law firm did not identify any big issues.

“I’m only assuming that had they found anything of substance, I probably would’ve heard about that,” Roth told the Journal last week. “But, no, there hasn’t been any report or any feedback.”

An internal email obtained by the Journal sheds some light on the project’s results, however limited.

Four months after Sutin’s work halted, Cole and fellow UNM attorney Kim Bell met with Sutin’s Rosenblum and Wade Jackson for an update.

Cole related the conversation in a May 17, 2017, email to regents and UNM’s then-President Chaouki Abdallah. She wrote that the Sutin attorneys said they “were not anywhere” in their review and had no conclusions, since Wagner had compiled only publicly available information.

“When the Select Panel released its final report in January 2017 and dissolved, the Sutin firm (including Ms. Wagner) ceased its work,” Cole wrote. “Mr. Rosenblum described their effort as preparatory work that resulted in … ‘a failure to launch.’ He said the investigation was ‘in hiatus’ and they would be ready to resume their work if the Regents so instructed them.”

Rosenblum did not respond to Journal messages.

Fortner, who resigned from the board last May, said he does not recall if he saw Cole’s email and did not know why Sutin attorneys would have characterized the project that way. He said he had at one point received an oral report indicating they had found no evidence UNM bought or sold fetal tissue.

The same Cole email also raises questions about whether Cole approved the Sutin engagement, which does not bear her signature. UNM procurement policy says the Office of University Counsel must approve the purchase of legal services.

Citing exact language in the engagement letter, a UNM spokeswoman said last week the Sutin arrangement “occurred through and with the consent of the Office of University Counsel.”

But Cole’s email to regents last year suggested otherwise.

In it, she wrote that Sutin representatives “acknowledged” she never signed an Aug. 18, 2016, version of the engagement letter and instead entered the engagement with the “different” letter dated Aug. 30, 2016.

“I asked what their authority was for the statement in the letter that ‘Pursuant to the Outside Counsel Guidelines, attached to the Contract as Exhibit A, this engagement has occurred through and with the consent of the Office of University Counsel,” she wrote. “They did not recall what circumstances led them to include this language.”

But UNM spokeswoman Cinnamon Blair told the Journal last week that after Cole sent that email last May, she’d had a “recollection” that she had in fact approved the engagement.

The Journal asked Cole for any signed and dated document signifying her approval of the Sutin agreement. She has not provided one.