The Montana Commission on Practice addresses the audience in the ethics and disciplinary hearing of Montana Attorney General Austin Knudsen (Photo by Darrell Ehrlick of the Daily Montanan).
At the opening of a historic disciplinary hearing for Montana Attorney General Austin Knudsen on Wednesday, a phalanx of attorneys defending the Treasure State’s top lawyer made the argument repeatedly that the 41 ethics charges were nothing more than an attorney doing his job to vigorously defend his client, the Legislature.
That’s a clever reframing of the issue.
Knudsen isn’t being charged with being a zealous prosecutor, he’s being charged with being a bad attorney. And there’s a difference: One defends his clients, playing within a system of rules that requires a law degree, a bar exam and an oath. The other one — the one he stands accused of — is knowing all of those things, and still doing something different.
Put more simply: Austin Knudsen wasn’t the adult in the room, so to speak.
An attorney’s job isn’t to simply do whatever their client wants. It’s to navigate the legal system, giving sound legal advice, while still adhering to the rules of the court. Having been a part of many legal battles myself, I know any good attorney will tell you the most important advice they can give a client is when not to fight, or at least what they cannot do. If not, what’s the point of seeking counsel in the first place?
The opening moments of the Commission on Practice disciplinary hearing demonstrated that Knudsen not only failed to help his client navigate the very serious issue of both taking and then releasing confidential information protected by the Montana Constitution without the knowledge of a co-equal branch of government, he then refused to follow multiple lawful orders given by the Montana Supreme Court. Despite Knudsen’s dubious assertions that those justices were self-dealing in a way that had never been seen before in American history, it was such a weak, insincere, and unworthy argument, the conservative leaning U.S. Supreme Court refused to take up the matter, essentially upholding the validity of the Montana Supreme Court’s action.
In the simplest terms, Knudsen cast his political and professional lot with the Legislature, and now comes the time when the justice system, and he as a member of the bar, must reckon with the fact that he refused to follow multiple lawful orders.
Neither the Montana Supreme Court nor the Commission on Practice has much of a choice in the matter. To simply accept that Knudsen could publicly flout judicial orders risks a system of chaos where attorneys can pick and chose which orders they and their clients follow. And to grant some kind of extraordinary privilege for the attorney general to do so would be to say only some attorneys have to follow court orders. Both of those results lead to a dangerous result.
The Montana Legislature committed several acts of bad faith, including subpoenaing emails from a separate government branch, using an intermediate agency, the Department of Administration, to get documents they knew darn well would be difficult if not impossible to get because of (wait for it) state law. That subpoena ordered that those emails, likely 5,000 of them, would be turned over nearly instantly, before anyone from the judiciary even found out.
Even after attorneys for the Montana court administration tried to slow the process or institute some kind of “ordinary” review process, Knudsen and his office were adamant that they would not bend, repeatedly refusing to turn over the emails, even though they had already been distributed to some members of the press. What was contained in those emails was a grab-bag of information that would normally be confidential — think information about kids being abused or employees’ medical conditions.
A good attorney in a similar situation would have advised his clients, power-drunk Republicans, that they were opening themselves up to tremendous liability and should have urged them to slow the process, instituting an ordinary review process. Instead of being the legally trained adult in the room, Knudsen went along with it.
The opening details of these disciplinary proceedings then established it wasn’t just one dust-up or disagreement Knudsen had with the Supreme Court and the orders it issued, but there were at least three documented cases. So, it’s hard to think Knudsen was just having one bad day at the office. This is a repeated case of Knudsen intentionally disregarding lawful orders as the chief law enforcement officer in the state.
That, more than anything, demonstrates that Knudsen continues to view the attorney general’s office as a politician, but that’s not what the Commission on Practice decides. Instead, it is considering his role — and his obligation — as an attorney.
That is one of the examples of why Knudsen must endure several days of disciplinary hearing — not because he was being a zealous attorney, but because he wasn’t being one when he most needed to be.
This is not about a vigorous defense any more so than you should vigorously defend a client with a knife or a set of brass knuckles — you can’t just do whatever you want in the name of defending your client.
I can forgive folks like Sen. Keith Regier, R-Kalispell, for running headlong into a bunch of clever subpoenas. He doesn’t have the same training, knowledge and understanding of the legal system, being a former teacher and sod salesman. But Knudsen went to law school, ostensibly to learn these things, and the oath he took as a member of the bar was to respect and navigate these rules.
This has nothing to do with political speech. It has nothing with co-equal parts of the government being in a stand-off or grudge match. This has everything to do with how Knudsen conducted himself as an attorney.
And because it is unclear which other parts of law school Knudsen didn’t seem to absorb, one of the foundational principles of the American legal system has its roots in Ancient Roman law: Ignorantia juris non excusat (ignorance of the law does not excuse it).