The complaint against Austin Knudsen: Knowns, and unknowns

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Montana’s attorney ethics office earlier this week filed a formal complaint against Montana Attorney General Austin Knudsen, alleging across 41 counts that Knudsen and his attorneys violated the state’s rules of professional conduct during litigation over legislative subpoena powers. 

The complaint is dense and lengthy, and requires some understanding of both the rather arcane system for disciplining attorneys accused of professional misconduct and of a two-year-old lawsuit. But the gist is this: Knudsen and his attorneys within the Montana Department of Justice are accused of undermining public confidence in the judicial system with their communications to and about the Montana Supreme Court during a lengthy separation-of-powers conflict that centered on a 2021 lawsuit, McLaughlin v. Montana State Legislature. 

More specifically, he’s accused of violating the Montana Rules of Professional Conduct — a series of ethical and practical precepts promulgated by the Montana Supreme Court that govern the conduct of attorneys in Montana. Alleged violations of those rules are investigated and pursued by the Office of Disciplinary Counsel, a court-appointed professional organization currently led by attorney Pam Bucy. But Bucy recused herself in this case, citing her past Democratic candidacy for attorney general and for her work under Supreme Court Chief Justice Mike McGrath when he served as attorney general. She appointed Missoula attorney Tim Strauch, who so far has not returned a request for comment, to handle the case. 

The insular nature of this process has already generated criticism from Republicans who have, in recent years, accused the court of being self-policing, opaque and at times prejudiced, owing to the dozens of GOP-backed laws from the past two sessions that have faced constitutional challenges and often fallen to court-ordered injunctions. (Democrats and others counter that the state’s Republican supermajority has knowingly passed laws with glaring constitutional issues). These points have and will continue to surface in debates over legislation that would reshape the court’s processes and in testy elections for the officially non-partisan Supreme Court. 

The news of the complaint broke quickly, without a ton of time to get a handle on the particulars of an extraordinary event. Some big questions still need answering. In the meantime, here’s what to know about the disciplinary proceedings against Montana’s top attorney and law-enforcement official. 

WHAT IS THE MCLAUGHLIN CASE? 

In 2021, the Legislature passed a bill that gave the governor unilateral authority to fill judicial vacancies. The undertone of the legislation was that during the 16 prior years of Democratic governors, the court had become stacked against conservatives. The bill eliminated a nominating commission that created a pool from which governors could pick a judge, instead allowing the governor to pick just about any attorney in good standing. 

The law almost immediately faced a constitutional challenge. The Supreme Court, despite the perception that Republicans were working to create, upheld its legality. 

But in the process, the attorney general’s office — the lawyer for the Legislature and governor’s office — raised concerns about emails between Montana court administrator Beth McLaughlin and several judges that discussed polling she conducted at the behest of the Montana Judges Association on legislation that affects the court. Knudsen’s office contended that those discussions were proof of judges “pre-judging” the constitutionality of legislation that could come before the court. The court and MJA responded that this was standard practice and part of the decision-making process for lobbying on judicial bills during the session. 

The Legislature requested more information from McLaughlin about judicial polling. She responded with some tallying of polls related to certain bills but also indicated that not all relevant emails had been retained. 

That led to a legislative subpoena for a raft of McLaughlin’s documents from the Montana Department of Administration, an appointed agency that functions as a sort of repository for government communications, among other functions. 

When McLaughlin learned of the subpoena, she moved to have it quashed, arguing the documents could contain privileged information that required review before release to the public. But thousands of emails had already been disclosed. The saga went on to include subpoenas to Supreme Court justices, confrontational legislative hearings, sweeping accusations of bias and improper records retention, motions to dismiss and to substitute the justices, an unsuccessful appeal to the U.S. Supreme Court and a broader debate on the extent of legislative subpoena power. In the eyes of the court and its defenders, the whole rigmarole was nothing more than an attempt by Republican officials to besmirch the court and provide a pretext for reshaping it in a way that would be friendlier to the legislation the GOP was passing. 

WHAT EXACTLY IS KNUDSEN ACCUSED OF? 

It was during the separation-of-powers battle that the alleged professional conduct violations surfaced. 

Many of the counts focus on a letter from the late Chief Deputy Attorney General Kris Hansen to Justice Jim Rice — who acted as chief justice in the stead of Mike McGrath during the lawsuit — flouting a court order that quashed legislative subpoenas for court documents and accusing the court of interfering with legislative business. 

“The Legislature does not recognize this Court’s Order as binding and will not abide it,” Hansen wrote.

The complaint alleges that “sending the Court a letter to reargue an issue, resist the ruling or insult the judge constitutes a knowing disobedience of an obligation under the rules of a tribunal,” a violation covered under professional conduct rule 3.4: “Fairness to Opposing Party and Counsel.”

The Office of Disciplinary Counsel takes similar issue with a letter from Knudsen to members of the Supreme Court accusing them of impropriety and inaccuracy, statements the complaint describes as “contemptuous, undignified, discourteous and/or disrespectful.” 

Based on that and other counts, the Office of Disciplinary Counsel maintains that “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.” 

And while some of the counts pertain specifically to actions taken by attorneys serving under Knudsen, the complaint repeatedly highlights a rule of professional conduct that a lawyer with managerial authority over their firm — in this case, Knudsen’s managerial authority over the state Department of Justice — “shall be responsible for another lawyer in the firm’s violation of the Rules of Professional Conduct.”

A spokesperson for Knudsen disputed the complaint’s claims.

“The Attorney General looks forward to filing his response with the commission,” spokesperson Emilee Cantrell said in a written 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.”

Cantrell also branded the complaint a “political stunt,” referencing seven campaign donations Strauch made to Democratic state candidates between 2000 and 2020, and questioning why the complaint is being made public now — when Knudsen is presumably gearing up to defend his position as attorney general against declared 2024 Democratic candidate Ben Alke — as opposed to two years ago when the actions at the complaint’s core were current. Alke is the only Democrat who has filed in the race. 

Attorney practice complaints can be filed up to six years after an alleged incident. It’s unclear when the initial grievance was filed. 

HOW DID IT COME TO THIS? 

The attorney discipline system in Montana comprises two court-appointed offices that work in tandem: the Office of Disciplinary Counsel and the Commission on Practice. Both are established and their members appointed by the Montana Supreme Court, which, under the state Constitution, “may make rules governing appellate procedure, practice and procedure for all other courts, admission to the bar and the conduct of its members.”

The Office of Disciplinary Counsel reviews and investigates grievances, which anyone can file against any lawyer in the state. If the office decides to pursue disciplinary action, it requests permission from a panel composed of members of the Commission on Practice to file a complaint. If the panel authorizes that request, an attorney with the Office of Disciplinary Counsel files a formal complaint with the Supreme Court. 

That’s the current stage of the complaint against Knudsen, which has one more hurdle to clear before it can reach the final arbiters of attorney conduct in the state: the Montana Supreme Court. Another panel of Commission on Practice members will hold a hearing about the complaint and provide the respondent — Knudsen — the opportunity to mount a defense. The panel can then issue a report containing findings of fact and recommendations for disciplinary action. 

Bucy, the chief lawyer at the Office of Disciplinary Counsel, said her office receives between 300 and 400 complaints a year, and the vast majority are dismissed. Only about 10 or 20 cases go to trial before the Commission on Practice. It’s not immediately clear when the last time a complaint against a Montana attorney general got to this point, though Bucy said there hasn’t been one since at least 2002. 

WHAT COULD HAPPEN TO KNUDSEN? 

The ranges of discipline that the Supreme Court can mete out to attorneys include private or public admonitions, suspensions and, in the most extreme cases, disbarment – which, in theory, would prevent Knudsen from serving as attorney general as the Montana Constitution requires the holder of that office to be an attorney in good standing. 

However, disbarment is an extraordinary and unusual step. Examples of attorneys who have been disbarred through this process include Ravalli County’s Robert C. Myers, who was disciplined following several complaints for violating his ethical duties to clients and accusing a district court judge without evidence of purchasing and using illegal drugs.

And it’s still an open question whether Knudsen will face any discipline and what the Commission on Practice will decide, let alone what the Supreme Court would approve.

THIS COULD TAKE A WHILE

Bucy said the commission is likely to take up the complaint at its March meeting. The panel meets quarterly, and the next meeting is in October, which likely won’t allow enough time for all the parties involved to submit the necessary materials and conduct discovery. Many of elements of this process are confidential under the court’s own rules for discipline, including, at this point, the original grievance against Knudsen. The commission on practice’s deliberations will also be private. So don’t expect clarity on Knudsen’s fate for quite some time. The members of the commission are here.

WHO IS TIM STRAUCH? 

Strauch is a private-practice attorney from Missoula whom Bucy appointed to handle the case in her stead. But he’s not just some lawyer off the street. Strauch, according to Bucy, is one of the few people who understands the process. He was the inaugural chief counsel at the Office of Disciplinary Counsel when it was established in 2001 and helped write the rules of professional conduct. 

ATTORNEY DISCIPLINE ON THE MIND 

Montana’s attorney discipline process — more specifically, the Supreme Court’s role in policing lawyers in the state — has been the subject of recent coverage by Capitolized and Montana Free Press. A 12-year-old homeschooler named Nicole Bennett is bringing a ballot initiative that would amend the Montana Constitution to remove language that gives the Supreme Court the authority to make rules governing “admission to the bar and the conduct of its members.”

Bennett’s explanation is that she wants to make it possible for people to become lawyers without attending law school, currently a prerequisite for most state bars in the country, including Montana. 

But the bar association and other critics say that changes proposed in the initiative would not only make it possible for lawyers to pass the bar without going to law school — something they argue is unwise — but also remove the court’s power to regulate the practice of law in Montana without a clear regulatory framework to replace it. The actual text of the proposed constitutional amendment, they note, only removes language, adding nothing about the Legislature or any other body replacing the high court’s regulatory role. 

“Over many decades, the Montana Supreme Court has crafted standards for character and fitness, requirements for legal education and a bar exam, and those for the ethical conduct of attorneys, including things like the reasonableness of lawyers’ fees,” John Mudd, the executive director of the State Bar of Montana, told MTFP when the ballot initiative became public. “The court has done this work for one reason: to protect the public and clients from lawyers who lack basic good character, competence, or fail to adhere to the Montana Rules of Professional Conduct in the representation of their clients.”

Knudsen has already signed off on the measure’s legality, despite protests from the bar that the change would unconstitutionally strip an inherent power of the court. That presumption — one not unique to Montana’s judiciary — is based partly upon previous court rulings making that same case. 

The initiative supporters still need to gather enough signatures to land it on the ballot in 2024. Bennett, it’s worth noting, is the daughter of vocal right-wing activists in Carbon County who have raised claims of substantial election fraud, though none of those claims have gone anywhere.

This story was update Sept. 8, 2023, to reflect the accurate origin of polling conducted on legislation that affected the judiciary.