HELENA — Montana Attorney General Austin Knudsen defended his handling of a long-running legal dispute between the state Legislature and the judicial branch Wednesday, as a state panel heard the first day of testimony on a professional conduct complaint against him.
An adjudicatory panel of the Montana Commission on Practice is meeting in Helena this week for a formal hearing on the case. They will be tasked with recommending whether Knudsen should face any disciplinary action.
Randy Ogle, a Kalispell attorney chairing the panel, acknowledged the highly unusual and politically charged nature of this complaint at the start of the hearing.
“We're not going to be getting into any political issues in this case,” he said. “We're going deal only with the allegations in the complaint, and in particular, whether any of the rules that attorneys are bound to abide by have been violated.”
The complaint lists 41 counts against Knudsen, but they essentially boil down to repeated accusations that he or attorneys working for him violated the ethical code for lawyers by disobeying an obligation from a court, making statements about judges’ integrity that were false or with reckless disregard of whether they were true or false, and “engaging in conduct that is prejudicial to the administration of justice.”
The case dates back to 2021 when Knudsen represented Republican legislators who issued subpoenas for and received several thousand internal emails from Supreme Court justices, lower court judges and judicial branch staff.
They were seeking information on whether judges had expressed opinions on proposed bills the Legislature was considering, arguing that that practice created concerns about due process and impartiality when the bills faced legal challenges in their courts.
The Montana Supreme Court blocked the subpoenas, ruling they exceeded the Legislature’s authority. Knudsen and his office asked the court multiple times to reconsider, and eventually asked the U.S. Supreme Court to intervene.
In those filings, he and attorneys working for him criticized the court’s actions, arguing it was inappropriate for them to rule on a case that dealt with their own policy and employees.
Tim Strauch, an attorney from Missoula, served as special counsel for the Office of Disciplinary Counsel, which investigates complaints of professional misconduct against lawyers. His report, filed last year, said the attorney general’s office had “routinely and frequently undermined public confidence in the fairness and impartiality of our system of justice.”
Knudsen’s office has called Strauch’s accusations “meritless” and said the complaint is a politically motivated attack. On Wednesday, Solicitor General Christian Corrigan told the panel that, even if they don’t approve of how Knudsen handled the dispute, he took these actions in good faith, as part of a vigorous defense of the Legislature’s interests.
“This was high-stakes constitutional litigation in a clash between co-equal branches of government,” he said.
In the afternoon, Strauch called Knudsen himself to testify. He repeatedly questioned him about whether calling Supreme Court statements “ludicrous” or “outside the bounds of rational thought” or accusing justices of misconduct were appropriate.
“This letter was disrespectful to the Montana Supreme Court, wasn't it?” Strauch asked.
“No,” Knudsen responded.
“This letter was intemperate, wasn't it?”
“No.”
“It was contemptuous, wasn't it?
“Not in my opinion, no.”
“It was insulting, wasn't it?”
“No.”
Strauch pressed Knudsen on whether he stands by the language used in some of the letters his office sent.
“Counsel, if I'm being really honest, in hindsight, I think a lot of things could have been done different here – and probably should have been done different here,” Knudsen replied. “If I had this to do over, we probably would not have allowed language like this, so sharp, to be used. But we and our client truly felt that we were in an absolutely novel situation of constitutional emergency, and this is the language that went out.”
Knudsen said, before the Court quashed the subpoenas, this had been “uncharted waters” legally speaking, and his office’s actions were all based on the Legislature’s reasonable contention that the Court should not have authority over their subpoena power.
He said that, when his office refused to abide by certain orders, they did it under “an open refusal based on an assertion that no valid obligation exists” — an exception in the Rules of Professional Conduct.
The panel's hearing will continue Thursday and possibly into Friday. They are not expected to make any immediate ruling after it's completed.
