The Montana Supreme Court has declined a request to suspend the law license of Montana’s top lawyer, Attorney General Austin Knudsen.
Knudsen, Montana’s attorney general since 2021, had been under scrutiny froma Montana Supreme Court-appointed body that investigates and assesses Montana attorneys’ adherence to state standards of professional conduct.
The Office of Disciplinary Counsel had argued that Knudsen and Montana Department of Justice attorneys working under him acted counter to ethical “precepts,” alleging that Knudsen “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.”
Timothy Strauch, a Missoula attorney hired by the Office of Disciplinary Counsel to bring the professional misconduct charges against Knudsen, argued in a Sept. 23, 2023, filing that Knudsen’s actions could lead the public to “question whether the judicial system itself is worthy of respect.” Strauch had asked the court to discipline Knudsen by suspending his law license for 30 days and requiring that he pay for the misconduct proceedings against him.
In a 41-count charge, Strauch compiled dozens of statements made by Knudsen and DOJ lawyers. Strauch argued that by making “contemptuous, undignified, discourteous and/or disrespectful” statements about the judicial branch, Knudsen had violated a handful of professional conduct rules specific to attorneys. Strauch also contended that Knudsen failed to uphold the oath he took upon joining the state bar in 2008.
Strauch flagged sections of court filings in which Knudsen and other DOJ attorneys accused the Supreme Court and its administrator of trying to “conceal its misbehavior,” engaging in “judicial misconduct,” and making “untrue” statements. The statements were made in the context of a yearslong separation-of-powers struggle between Montana lawmakers and state judges.
In 2021, the Legislature requested information regarding Montana Supreme Court administrator Beth McLaughlin’s email communications with judges regarding their assessment of bills introduced by lawmakers earlier that year that were expected to intersect with the judicial branch. The Legislature subpoenaed those communications, launching a spate of fiery rhetoric regarding the boundary between lawmakers’ ability to pass laws and judges’ authority to interpret their legality. McLaughlin moved to have the subpoena quashed, but only after the DOJ received USB drives containing thousands of emails. For nearly a year, in defiance of a Supreme Court order, DOJ refused to return the USB drives.
In the court’s lengthy Dec. 31 order, Chief Justice Cory Swanson expressed more concern with Knudsen’s refusal to expediently return the USB drives than with statements made by Knudsen and other DOJ attorneys in the months before and after the drives were returned.
The Office of Disciplinary Counsel, Swanson wrote, “simply failed to prove” that Knudsen defied rules of conduct prohibiting an attorney from undermining a judge’s qualifications or integrity by making false statements “or with reckless disregard as to its truth or falsity.”
Swanson wrote that “each of [Knudsen’s] statements critical of the Court was either a factual statement, which ODC failed to prove was false, or a statement of opinion.” He also wrote that ODC failed to demonstrate that Knudsen’s conduct “had a nexus to an adverse effect on a specific court proceeding.”
The 91-page majority opinion concluded that “extensive litigation with numerous hearings playing out in public for years, coupled with our Opinion and Order finding violations, is far worse and a more informative sanction that the originally contemplated private admonition would have been.” The order went on to counsel “all Montana attorneys, including Knudsen and his subordinates, to obey all lawful orders of all courts.”
Since most of the court’s justices were enmeshed in the controversy that preceded the ethics investigation, they recused themselves from the decision. Swanson, a former Broadwater County District Attorney whose 2024 candidacy to lead the state’s highest court was backed by prominent Republican officeholders, appointed five district court judges to consider the ODC chargesin the regular justices’ stead. Those district court judges are Jessica Fehr, Rod Souza, Luke Berger, Gregory Bonilla and Paul Sullivan.
In an emailed statement Wednesday afternoon, Knudsen cheered the court’s decision.
“I appreciate the Supreme Court bringing this frivolous complaint to a long-overdue conclusion. We’ve said it from the very beginning, this was nothing more than a political stunt,” Knudsen wrote. “I’m glad this distraction is behind us as we continue our work at the Department of Justice to keep Montana the best place to live and raise a family.”
House Speaker Brandon Ler, R-Savage, also commented on the order.
“Attorney General Knudsen acted within his constitutional authority and in defense of the separation of powers. Attempts to punish an elected official for standing up to judicial overreach undermine our system of government and the will of the people,” Ler wrote in an emailed statement.
Katherine Bidegaray, the other recently elected Supreme Court justice who wasn’t party to the 2021 spat between the court and the Legislature, authored an opinion that concurred with some aspects of the majority opinion and conflicted with several key elements. Bidegaray wrote that the Commission on Practice — the panel that referred Knudsen’s conduct to the ODC for formal charges — “reached findings that are reviewable and supported by clear and convincing evidence.” She also argued that Knudsen’s refusal of the court’s order to return the subpoenaed material was “prejudicial to the administration of justice,” and that the majority decision amounts to dismissing the complaint against Knudsen “without discipline.”