HELENA — A state panel is recommending that Montana Attorney General Austin Knudsen be suspended from practicing law for 90 days, arguing that he did violate the ethical code for lawyers in his handling of a long-running legal dispute between the Legislature and the judicial branch.
An adjudicatory panel of the Montana Commission on Practice (COP) submitted its recommendation Wednesday, two weeks after holding a hearing on a professional conduct complaint against Knudsen.
“It is the conclusion of the COP that the conduct in issue here is repeatedly, consistently and undeniably violative of the [Montana Rules of Professional Conduct] provisions referenced in the Complaint and herein, and prejudicial to the administration of justice,” wrote panel chair Randy Ogle, an attorney from Kalispell.
This recommendation has no immediate effect. Knudsen’s office has already promised to appeal the decision, and the Montana Supreme Court will make a final decision on what, if any, disciplinary action to impose.
The case dates back to 2021 when Knudsen represented Republican legislators who issued subpoenas for and received 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 asked the court multiple times to reconsider, and eventually asked the U.S. Supreme Court to intervene. In filings and letters, he and attorneys working for him repeatedly 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 against Knudsen claimed that he and his attorneys had violated the rules of professional conduct by disobeying an obligation from a court and by making statements about judges’ integrity that were false or with reckless disregard of whether they were true or false.
The members of the panel ruled that he had disregarded the Supreme Court’s order by not immediately returning the emails at issue, and that the language he “implemented, endorsed or ratified” in response to the Court violated his obligations as an attorney.
“No attorney licensed to practice law and armed with its privileges and responsibilities, particularly the chief legal officer of our state, charged with the duty to defend any elected official and the laws of our state, can attack other elected officials of our state with impunity, in apparent total disregard for the Rule of Law and MRPC,” Ogle wrote.
Knudsen said during the hearing that, given a chance to do it over, he likely wouldn’t have approved some of the language used in those filings.
However, he said the situation was “a absolutely novel situation of constitutional emergency,” and that his actions were all legitimate attempts to defend the rights and interests of his clients — the Legislature.
Knudsen’s attorneys also asked the panel to consider the political context of these actions and that disciplining him could further inflame the conflict between branches of government.
The panel said taking that into consideration wouldn’t change their analysis.
“Again, the COP doesn't enjoy the luxury of considering concerns over such matters: our singular focus, the ONLY issue, is the conduct of the Respondent measured against the admittedly applicable Rules,” wrote Ogle.
Now that the recommendation is published, Knudsen’s attorneys will have 30 days to file objections to it, and the other side will then have another 30 days to respond. After that, the Supreme Court will decide whether to hold an oral argument before considering the case.
Emilee Cantrell, a spokesperson for the Attorney General’s Office, responded to the recommendation in a statement to MTN.
“We obviously disagree with the recommendation made by the Commission on Practice and agree with the 2022 recommendation of the Office of Disciplinary Counsel’s first special counsel Daniel McLean that this could have been handled privately, avoiding a politically charged disagreement,” she said. “In addition to objecting on the merits of the recommendation, we plan to address on appeal the COP’s due process violations and the multiple irregularities made throughout the proceedings.”
