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Montana Attorney General Knudsen responds to legal complaint

Posted at 5:53 PM, Nov 29, 2023
and last updated 2023-11-30 11:25:11-05

HELENA — This week, Montana Attorney General Austin Knudsen filed his official response to a complaint accusing him of professional misconduct, calling it “highly irregular” and defending his handling of a dispute between the Montana Legislature and the state Supreme Court.

Lawyers representing Knudsen – both private and from the Attorney General’s Office – submitted the 50-page document Monday to the state Commission on Practice. In it, they denied that his actions during the 2021 dispute violated any rules for attorneys’ conduct and said the complaint should be dismissed in its entirety.

“The Montana Commission on Practice has never seen a disciplinary complaint like this,” their filing said.

In September, Timothy Strauch, a Missoula attorney serving as special counsel for the office, submitted a report charging that Knudsen had violated the Montana Rules of Professional Conduct – the ethical code lawyers are expected to follow. The 41 counts listed in the complaint boil down to repeated allegations that Knudsen and attorneys working for him disobeyed an obligation from a court, made statements about judges’ integrity that were false or with reckless disregard of whether they were true or false, and engaged in “conduct that is prejudicial to the administration of justice.”

The claims all date 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 other Department of Justice attorneys 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.

Knudsen’s defense team said in their filing that the situation was unprecedented, intense and politically charged, and that he was responding to what they describe as “what the Attorney General determined to be well-founded allegations of judicial misconduct.”

“The Attorney General acknowledges that he pressed his client’s position firmly, at times employing strong language,” the filing said. “But far from violating rules of professional conduct, the Attorney General was upholding them.”

Knudsen’s attorneys said he wasn’t defying the Supreme Court by not returning the emails, as he was challenging their decision to the U.S. Supreme Court. They also argued disciplining him for the comments he made about the judiciary would have a chilling effect on discussing serious questions about judges’ conduct.

“And it cannot be that Rule 8.4(d) obliges attorneys to refrain from criticizing the judiciary in a dispute about judicial misconduct,” they said. “As already discussed, if that were the rule, then Montana attorneys could never raise legitimate concerns about conflicts of interest or other judicial misconduct—even though they have obligations under the MRPC to report violations of the code of judicial conduct, see Rule 8.3(b), and to protect their clients’ interests and ensure their clients receive a fair hearing.”

The defense argued the commission should find Knudsen didn’t violate the rules of conduct – and if he did, the rules are too restrictive on constitutionally protected speech.

“If the Montana Rules of Professional Conduct can be read to apply to the Attorney General’s conduct in this case, those Rules are unconstitutionally overbroad and vague in violation of the First Amendment to the United States Constitution,” they said.

State staff told MTN there will now have to be a scheduling conference to determine the timeline for when this issue might go before the Commission on Practice, and it will likely be several months before a formal hearing is held. The commission will then recommend to the Supreme Court whether Knudsen should face disciplinary action.