Commission Recommends 90-Day Law License Suspension For Knudsen

A Commission on Practice adjudication panel on Wednesday, Oct. 23, unanimously recommended that the Montana Supreme Court suspend Attorney General Austin Knudsen from practicing law for 90 days because of multiple rule violations he committed during his representation of the Legislature in 2021. The recommendation came two weeks after Knudsen faced a two-day disciplinary hearing before the commission in which the Office of Disciplinary Counsel outlined why it had charged Knudsen in a 41-count complaint alleging attorney misconduct, while his attorneys tried to show that Knudsen had made or signed off on certain statements only in his rigorous defense of the Legislature.

“Attorneys are not engaged in trial by combat, and are constrained to ‘color inside the lines,’” the five-member panel wrote in the unanimous decision. “To require the minimum of common professional courtesy required by the rules costs the parties nothing of substance, and preserves the integrity of the justice system which is the foundation for the Rule of Law that serves everyone.”

In a statement, a spokesperson for the Attorney General’s Office said the office disagreed with the recommendations and planned to challenge them at the Supreme Court. Spokesperson Emilee Cantrell said the office believed the first special counsel’s recommendation of a private admonition for Knudsen was the appropriate one.

Now that the commission panel has made its recommendation to the Supreme Court, Knudsen will have 30 days to file objections, after which the Office of Disciplinary Counsel will also have 30 days to file a brief opposing his objections. After that, the Supreme Court could set the case for oral arguments, but it could also choose to consider the case without further argument.

Once that process is complete, the court will issue a written decision that either imposes punishment or does not. It may follow the commission’s recommendation, but could choose a different course of action, which could range from implementing no punishment, to various types of admonitions, censure, suspension, or disbarment.

Knudsen, a Republican, is up for re-election in less than two weeks and faces Democrat Ben Alke in the race. Under the Montana Constitution, the state’s attorney general must be an attorney in good standing with the State Bar of Montana, so the recommendation raises the question of what would happen should the Supreme Court agree with the recommendation and suspend Knudsen’s license either in the two months following the election or if Knudsen wins re-election for another four years.

The findings of fact, conclusions of law, and recommendation released Wednesday by the commission panel addresses the arguments at hand in the case, which were largely detailed in the hearing two weeks ago and in briefings filed by the two sides throughout the case.

In the commission’s filing, the panel said Knudsen’s attorneys asked it to excuse the conduct of Knudsen and two of his deputy attorneys during their representation of the Legislature in its fight with the Supreme Court and court administrator over the court’s emails it had received through a subpoena to the Department of Administration.

He and his attorneys used language in filings and letters during the course of that fight – including the state’s appeal up to the U.S. Supreme Court – that were critical of the judiciary and openly flouted court orders, the Office of Disciplinary Counsel alleged at the hearing.

Knudsen’s attorneys had argued there was an emergency and constitutional crisis at hand with the fight between the two branches of government, warranting his and his office’s “zealous” representation of the Legislature. They also said that holding Knudsen responsible for the conduct could further fan the flames in the fight. But the panel said it does not “have that luxury” to consider those arguments as substantive.

“Indeed, if conduct violative of the rules was endorsed or accepted by the COP in any circumstance, that abdication of our responsibility to the public for oversight of attorney conduct, in the name of deference or otherwise, would erode the very foundations of our justice system,” the panel wrote in Wednesday’s filing.

The panel said that it is well-established that there are fiery court fights and that court cases almost always have a losing party. But the attorneys are still bound by the Rules of Professional Conduct that they swear to abide by when they become an attorney.

It said that Knudsen during the hearing recognized that an attorney’s conduct is not excused under the rules just because they are representing the positions of their client. And regardless, according to the panel, it is Knudsen’s and his deputies’ language at hand in the case, not that of the Legislature.

The panel wrote that failing to require attorneys to adhere to the rules and principles of the legal system would be “nothing short of an invitation to anarchy.”

“If there is no place where individuals and entities can expect to receive justice - if the courts cannot preserve their integrity - we are all lost,” the panel wrote. “Therefore, unavoidably, conduct in derogation of these obligations must be addressed.”

The filing also rejects Montana Solicitor General Christian Corrigan’s closing arguments at the hearing made on behalf of Knudsen, in which he pointed to other instances that judges had used strong language like the words “ludicrous” and “perverse.”

The panel said those arguments disregarded the context in which they were made and stopped short of highlighting the most incendiary remarks made by Knudsen or his deputies. The filing then outlines all of those remarks or acts of defiance, which Knudsen at the hearing denied were contemptuous, undignified, disrespectful or disobedient, a question special counsel Tim Strauch posed to him several times.

The conclusions of law section of the filing shows the panel found Knudsen violated five of the Montana Rules of Professional Conduct. The document then launches into the conclusion and recommendation.

The panel said it “is placed firmly on the horns of a dilemma.” It says no licensed attorney, particularly not the attorney general, can attack other elected officials with impunity, and for Knudsen to deny that the comments made violated attorney ethics rules “is disingenuous in the extreme.” It said that flouting a court order to immediately return documents back to the courts without seeking any relief in court “is beyond the pale.”

The panel says Knudsen and his team have suggested that holding him accountable for rules violations could bear further consequences. But the filing says the panel “doesn’t enjoy the luxury” of such considerations because its only focus is determining how conduct squares with those ethics rules.

“It is the failure to hold attorneys accountable for their conduct, regardless of the circumstances, wherein lies the true terror for our justice system,” panel chair Randy Ogle wrote.

The conclusion says the panel found that emergencies or constitutional crises do not excuse violations of the rules of conduct and that the opposite was true. It called the context that Knudsen’s team presented “largely irrelevant.”

“Attorneys are not weapons to be wielded at the discretion of any client; attorneys are certainly charged with advancing the legitimate goals of their clients, but only within the constraints of the Law and the MRPC,” the filing says of the Montana Rules of Professional Conduct.

It says the commission panel was “gratified” that Knudsen had said during the hearing that things could have been done differently in 2021 “in hindsight” and that he now would not use, or allow his deputies to use, such strong language. But the filing says the admission that things could have been done differently doesn’t change what happened on the ground or that Knudsen refused to admit the conduct violated the rules of professional conduct. “Coming full circle, per the record before the COP, with limited exception, the charges arise not so much from the ‘what’ was done by the Respondent, but ‘how’ he carried out his duties,” the filing says. “It is the conclusion of the COP that the conduct in issue here is repeatedly, consistently, and undeniably violative of the MRPC provisions referenced in the Complaint and herein, and prejudicial to the administration of justice.”

Attorney General’s Office spokesperson Cantrell said Knudsen would file objections to the recommendations.

“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 political charged disagreement,” Cantrell 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.”

Montana Republican Party Chairperson Don Kaltschmidt, called the recommendation “absurd” and accused the panel of being Democrats “looking to advance their electoral interests.”

“They could have ended this witch-hunt 2 years ago, just like their own Special Counsel recommended, but they sought to drag it out for maximum political benefit,” Kaltschmidt said in a statement.