Misconduct allegations against AG rare; hearing to be scheduled
Keila Szpaller
(Daily Montanan) Attorney General Austin Knudsen is facing 41 counts of professional misconduct with a special counsel alleging he defied and repeatedly sought to undermine the Montana Supreme Court, contrary to his ethical obligations as a lawyer and to the detriment of justice.
“Knudsen and lawyers under his supervision routinely and frequently undermined public confidence in the fairness and impartiality of our system of justice by attempting to evade the authority of the Montana Supreme Court and assaulting the integrity of the judiciary and the individual Justices who were duly elected by Montana citizens to make decisions,” said the complaint, filed by Special Counsel Timothy Strauch for the Office of Disciplinary Counsel.
“Because of this misconduct, the public may be led to question whether the judicial system itself is worthy of respect.”
Such a complaint against an attorney general appears to be rare; although he could not immediately verify the record, Clerk of the Montana Supreme Court Bowen Greenwood said he could not recall misconduct allegations being filed against the state’s top lawyer and law enforcement officer in the time he’s been involved in state politics, since 1995.
Strauch filed the complaint Tuesday requesting a formal hearing before a disciplinary panel. The complaint requests Knudsen be ordered to respond within 21 days, and it requests the panel recommend appropriate disciplinary action after the hearing if warranted, including an award of the costs of prosecution.
The panel could recommend discipline such as public censure, suspension, or disbarment, although the complaint did not suggest any specific discipline aside from a possible financial award for expenses. The panel may also decline to recommend discipline.
Knudsen, a Republican who took office in 2021, has been practicing law in Montana since 2008, according to the complaint. His office described the complaint as a “political stunt” filed by a long-time “Democrat activist and donor” on the brink of an announcement that a Democrat will run for attorney general; his office said he was referring to the special counsel.
“The Attorney General looks forward to filing his response with the commission,” his office said in a prepared statement. “The allegations are meritless and stem from a legitimate dispute between two branches of government. No one should be persecuted for holding a different opinion than those in power.”
The Office of Disciplinary Counsel is established by the Montana Supreme Court. Its responsibilities include investigating and prosecuting grievances against lawyers including misconduct allegations. Many grievances are dismissed or settled, but Greenwood said an estimated seven to 12 disciplinary cases a year are processed with the Montana Supreme Court.
A person who answered the phone at the Strauch Law Firm in Missoula said Strauch was unavailable for comment Wednesday. The bio posted on his law firm’s website notes Strauch was the Montana Supreme Court’s first appointed disciplinary counsel for the Office of Disciplinary Counsel; his office could not immediately provide the year of the appointment, but the bio said he served three years in that role.
AG’s 2021 fight with judiciary centerpiece of complaint
The allegations in the complaint stem from a fight among government branches that erupted in 2021 over the power of the judiciary and statements Knudsen or lawyers working under his supervision made about the court and justices. Some Republicans on the far right have alleged the judiciary is too liberal.
The complaint references two proceedings from 2021. One challenged the constitutionality of SB 140, which did away with the judicial nominating commission and cleared a path for the governor to appoint judges directly, and the other stemmed from a legislative probe into the judicial system that Knudsen sought to enforce in a capacity the complaint said was unclear.
The complaint said it’s Knudsen’s duty as AG to prosecute and defend all cases in the Montana Supreme Court where the state or its officers are a party or have an interest: “However, the basis of any agreement, appointment, communication or understanding between the AG and the Legislature by which the AG undertook to represent the Legislature in connection with the specific matters alleged below has not been publicly disclosed.”
In multiple court filings and letters, Knudsen or lawyers who worked for him accused justices of political “self-dealing,” “inappropriate behavior,” “questionable judicial conduct,” and of “actual bias,” including bias stemming from “disdain for the legislature.”
(In an order in June 2021, the Montana Supreme Court upheld SB 140, which gave the executive branch more control over judicial appointments, as the legislature wanted and expressed in that legislation. The majority opinion said the court’s job wasn’t to decide what appointment process was better, only whether the new process fit the Montana Constitution, and it did. However, in a concurring opinion, Justice Jim Rice described some of Knudsen’s statements, now included in the complaint, as “obviously contemptuous” of the court and ignorant of Montana history and legal precedent. For example, in a letter to Rice, Knudsen wrote this: “The Legislature does not recognize this Court’s [April 11] Order as binding and will not abide by it.”)
The complaint cites numerous statements made by the Attorney General’s Office it alleges inappropriately smeared the Montana Supreme Court and ran contrary to Montana Rules of Professional Conduct. It also notes Knudsen failed to promptly return records from invalid legislative subpoenas — in direct defiance of a court order.
In the 2021 session, after legislators learned district court judges had conducted a poll to weigh in on pending legislation over judicial appointments, the legislature subpoenaed records. (Judges said polling on pending legislation was typical; supreme court justices said they did not participate in the poll.) But the court administrator argued that releasing all emails requested without review would compromise privacy given the records included information about juvenile cases.
Before the court blocked the subpoena, the Department of Administration turned over some records to a legislative representative, who then provided the AG’s office with two USB drives that held more than 5,000 emails, the complaint said.
The Montana Supreme Court eventually ordered Knudsen to return the records, which his office had copied, and he stalled; the complaint said such conduct “constitutes a knowing disobedience of an obligation under the rules of a tribunal” in violation of the Montana Rules of Professional Conduct.
The conduct rule cited is titled “fairness to opposing party and counsel,” and it says a lawyer shall not “knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.”
Grievance, then complaint
Typically, a formal complaint is the outcome of a grievance process that’s been underway outside the public record. A grievance is filed with the Office of Disciplinary Counsel, and if the ODC concludes one or more ethical violations occurred, it submits findings to a review panel. The review panel considers whether to grant a request by the Office of Disciplinary Counsel to file a Complaint. If the ODC files a Complaint, it’s heard by a separate adjudicatory panel.
Shelly Smith, office administrator for the Commission on Practice, said in an email a hearing has not yet been scheduled with the adjudicatory panel. The adjudicatory panel may make disciplinary recommendations ultimately subject to approval by the Montana Supreme Court.
Each panel is made up of a separate subset of members of the Commission on Practice. The commission is composed of nine lawyers (eight elected from districts around the state, and one at-large lawyer appointed by the Montana Supreme Court), and five non-lawyers, appointed by the court. A commission member who sat on a review panel may not sit on an adjudicatory panel taking up the same matter.
Commission on Practice Chairperson Ward “Mick” Taleff declined Wednesday to comment for this story.