HELENA - Montana Attorney General Austin Knudsen is pushing back after a formal complaint issued this week accused him of professional misconduct for his handling of a long-running dispute between the Montana Legislature and the state Supreme Court.
On Tuesday, September 5, 2023, a report from the Office of Disciplinary Counsel was filed with the Supreme Court clerk. Timothy Strauch, a Missoula attorney serving as special counsel for the office, charged that Knudsen had violated rules for lawyers, intended to preserve confidence in the judicial system.
“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,” Strauch stated in his complaint.
The complaint asks the state Commission on Practice — a panel of lawyers and non-attorney members appointed by the Supreme Court — to hold a formal hearing and recommend to the court whether Knudsen should face disciplinary action. It calls for Knudsen to respond to the complaint within 21 days.
Emilee Cantrell, a spokesperson for Knudsen’s office, released a statement to MTN.
“The Attorney General looks forward to filing his response with the commission,” she said. “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 complaint lists 41 counts against Knudsen, but they essentially boil down to repeated accusations that he or attorneys working for him violated the Montana Rules of Professional Conduct — the ethical code lawyers are expected to follow — 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 issue dates to 2021 when Knudsen represented Republican state lawmakers 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 debating, arguing that that practice created concerns about due process and impartiality when the bills faced legal challenges in their courts.
The Montana Supreme Court eventually blocked the subpoenas, ruling they exceeded the Legislature’s authority. In a series of filings, Knudsen and his office criticized the court’s actions, arguing it was inappropriate for them to rule on a case that dealt with their own policy and employees.
The complaint points to statements Knudsen and his attorneys made as the case went on, accusing justices of things like “misbehavior,” “questionable judicial conduct” and “impropriety.” It also says Knudsen sent letters to justices that “reargued an issue” or “resisted the ruling,” which the special counsel argued was a “knowing disobedience” to the court. The complaint also says the attorney general’s office refused to immediately return the judicial branch emails after the Montana Supreme Court ordered it.
In her statement, Cantrell accused Strauch of political bias against Knudsen, a Republican.
“This is nothing more than a political stunt,” she said. “The hand-picked 'investigator' is a long-time Democrat activist and donor. It's curious timing that this is released after more than two years--but right before a Democrat is set to announce he will run for attorney general.”
The Office of Disciplinary Counsel (ODC) is an independent office, funded through assessments on practicing Montana attorneys. It takes in and investigates grievances filed against lawyers, thought it also has the authority to investigate beyond what is contained in a grievance.
The chief disciplinary counsel is an attorney appointed by the Supreme Court. Strauch formerly headed the office for three years in the early 2000s, when it was first created.
ODC’s current chief disciplinary counsel, Pam Bucy, told MTN Wednesday that she brought Strauch in as a special counsel to avoid any appearance of conflict of interest. Bucy previously worked as a deputy attorney general and was the Democratic candidate for attorney general in 2012.
Bucy told MTN they did receive at least one grievance against Knudsen, but she declined to state when this investigation began. Before a formal complaint is filed, grievances and the investigation process are confidential.
In order for ODC to file a formal complaint against an attorney, it must first get permission from a five-member “review panel” of the Commission on Practice. Once a complaint goes forward, the remaining nine members of the commission will serve as an “adjudicatory panel,” which will hold the hearing and decide whether or not to recommend any disciplinary action.
Potential forms of discipline the panel can recommend include a public reprimand, probation, a temporary suspension from practicing law or disbarment.
According to an annual report, ODC handled 264 new grievances in 2022. About 110 were found to merit additional investigation. Seven cases reached the stage of a formal complaint.
