Office of Disciplinary Counsel special counsel Tim Strauch delivers closing arguments at the Commission on Practice’s disciplinary hearing for Montana Attorney General Austin Knudsen on Oct. 10, 2024. (Photo by Blair Miller, Daily Montanan)
Attorneys for Montana Attorney General Austin Knudsen and the Office of Disciplinary Counsel delivered closing arguments Thursday in Knudsen’s disciplinary hearing before the Commission on Practice after hearing from the Supreme Court administrator and two lawmakers from the 2021 session.
Montana Solicitor General Christian Corrigan delivered the closing for Knudsen, saying that punishing Knudsen for inflammatory, and allegedly derogatory, statements made about the Supreme Court during 2021 litigation would further erode confidence in the judicial system, widen fault lines between partisans, and only make intergovernmental relations worse.
”In fact, it will likely only exacerbate the conflict between the branches,” Corrigan said. “In short, it would not serve the interests of justice.”
Montana Attorney General Austin Knudsen listens to a witness at his Commission on Practice disciplinary hearing on Oct. 9, 2024. (Photo by Blair Miller, Daily Montanan)
Shortly before that, Office of Disciplinary Counsel special counsel Tim Strauch cited cases of attorney discipline handed down in Montana in which he effectively said other attorneys have faced severe punishment, including suspension and disbarment, for what he said was less egregious conduct than Knudsen’s.
“We must meet the AG’s deplorable and unethical conduct with serious and compelling discipline. No one can be left with even a hint that anything close to this disrespectful and unethical conduct is permissible or tolerable,” Strauch said. “The rule of law depends on it.”
Their closing arguments were the conclusion to Knudsen’s two-day disciplinary hearing before a five-member panel of the Commission on Practice, the body which hears complaints regarding attorneys’ ethical conduct based on complaints filed with the Office of Disciplinary Counsel. The commission will now compile recommendations to send to the Montana Supreme Court, which will hand down any discipline the Republican attorney general might face.
That could range from no punishment, to private or public admonitions, censure, suspension, and up to disbarment from the Montana State Bar. Panel chairperson Randy Ogle said the panel would meet again to discuss the case soon and would try to get its findings of fact and conclusions of law issued “expeditiously.”
The allegations and 2021 fight
The case centers around a grievance filed last year, which led to a complaint the Office of Disciplinary Counsel filed against Knudsen in September 2023 alleging 41 various counts of professional misconduct.
The allegations are tied to things he or his office said in court briefings or in letters to the Supreme Court surrounding two courts cases that involved a bill that did away with the Judicial Nominating Commission in 2021, emails between court administrator Beth McLaughlin and other members of the judiciary. They also involve two polls McLaughlin sent to justices and judges in Montana concerning 2021 legislation, and a fight between the Legislature, Supreme Court and Department of Administration over subpoenaed email records from McLaughlin and the court.
The court cases were previously resolved. In one, the Supreme Court in July 2021 ordered Knudsen and the Attorney General’s Office to return all the emails it possessed from the judicial branch and taken via the Department of Administration based off a subpoena. That subpoena was stopped by the Supreme Court albeit on a weekend, and the Legislature sent successive subpoenas from there.
But after Knudsen was ordered to return all the emails that July, his office appealed the court’s decision all the way to the U.S. Supreme Court, which did not take the case. That is when the documents were returned to the court, in March 2022.
Since the complaint was filed, and during this week’s disciplinary hearing, Knudsen and other Montana Republicans have called the complaint and investigation a political attack and said the court was wrongfully overstepping its bounds with respect to both the legislative branch and Attorney General’s Office.
Republican Party Chairperson Don Kaltschmidt in a statement Thursday afternoon called the hearing a “political show trial” before a “kangaroo court commission.” Knudsen is up for re-election on Nov. 5 and faces Democrat Ben Alke.
McLaughlin, Galt, Hertz testify
Those same attacks were levied during this week’s hearing, as Ogle repeatedly sided with Strauch’s objections when Knudsen’s attorneys brought up the email fight, the poll, emails McLaughlin deleted, the irregular weekend hearing and injunction order as the basis for Knudsen and his office to use the language the Office of Disciplinary Counsel said is unbecoming of an attorney and undermines confidence in the judiciary. Both are violations of an attorney’s oath.
Attorney Shane Coleman questions former House Speaker Wylie Galt before the Commission on Practice on Oct. 10, 2024. (Photo by Blair Miller, Daily Montanan)
That shortened the questioning of 2021 House Speaker Wylie Galt and Sen. Greg Hertz, both Republicans brought on as witnesses Thursday to discuss why the Legislature was angry about the judicial poll regarding two bills. Hertz also led the Special Select Committee on Judicial Accountability and Transparency the Legislature formed in the midst of the fight.
One of those bills on which judges were polled, a proposed constitutional amendment, never passed. But the other, regarding the Judicial Nomination Commission, did and was later challenged and upheld by the Montana Supreme Court.
Knudsen’s attorneys attempted to get the two to re-hash the spring and early summer of 2021 in order to show why Knudsen was so “zealously,” as his attorneys have put it, defended the lawmakers in court. But Ogle ruled those issues had already been decided in the McLaughlin vs. Legislature Supreme Court case, which largely found no improprieties with the poll or email discussions around bills.
In a statement afterward, Hertz accused the commission panel of hiding evidence supporting the basis for Knudsen’s language and said “it was clear that the deck was stacked” against Knudsen and his mounting of a proper defense.
McLaughlin was the first witness of the day called, and similar objections were upheld when Knudsen’s attorneys questioned her about the polls and subpoenaed emails. The objections were also upheld when she was questioned about her attorney’s decisions to call two Supreme Court justices, file an emergency motion for a temporary restraining order, and have it granted over a weekend.
“Testimony about the attorney general’s comments and comments from his office are directly related to the allegations in this complaint that are relevant to this proceeding, so the objection is sustained,” Ogle ruled.
He would rule similarly throughout her testimony, saying issues surrounding her email records, computers and polls were “already dealt with by the Supreme Court.”
Knudsen’s attorney urges caution around disciplinary decision
In closing arguments, Corrigan told the commission it had heard from no experts or judges on about the 2021 fight and “now wants to Monday morning quarterback the decisions made” by Knudsen and his office during what he says was an unprecedented constitutional emergency between two co-equal branches of government.
Corrigan said the Office of Disciplinary Counsel wanted the commission to disregard why the Legislature felt it needed Knudsen and his office to use such strong and terse language with the court.
Montana Solicitor General Christian Corrigan delivers closing remarks in the disciplinary hearing for Attorney General Austin Knudsen on Oct. 10, 2024. (Photo by Blair Miller, Daily Montanan)
That included calling a court decision “ludicrous” and “wholly outside the bounds of rational thought”; saying in public findings that “judicial misconduct has come to light”; saying another opinion was “absolute nonsense” when it came to disqualifying judges; and writing in the U.S. Supreme Court filing that the Montana Supreme Court’s decision involved “questionable judicial conduct” and a “stunning counterfactual denial,” evidence at the hearing showed.
He said the irregularities surrounding the court’s decision to halt the legislative subpoena to the Department of Administration for judicial records, and some “concerning communications” lawmakers had either heard about or found in the email should have allowed for Knudsen to openly refuse court orders because he was not obligated to follow them since he was defending his client’s position.
“To rule in favor of the attorney general, you don’t have to agree that his legal positions were correct. You don’t have to endorse every forceful turn of phrase employed in his briefing. You don’t have to take the legislature’s side,” Corrigan said. “You can actually conclude that no one in the judicial branch acted improperly and that there was no conflict of interest when the justices ruled on the subpoenas in McLaughlin.”
“All you have to do is acknowledge that the attorney general had a good-faith basis for saying and doing what he did,” he added.
Corrigan said if the commission believes there is a “close call” about whether to sanction Knudsen, or which sanctions it should recommend, it should “err on the side of leniency.”
ODC says case is unprecedented
Strauch told the commission he saw the case and its impending decision differently.
“ODC filed a detailed complaint in this matter against the attorney general alleging 41 areas of misconduct. The attorney general has repeatedly called this complaint unprecedented,” Strauch said. “I agree. It is unprecedented because this conduct is unprecedented.”
He said the conduct Knudsen is charged with is “irrefutable fact” that was contained in exhibits, which went undisputed during the hearing. Strauch walked through each of the rules of professional conduct he accused Knudsen of violating, making his case as to why Knudsen as chief legal officer of Montana is responsible for his conduct as well as the subordinate attorneys in his office, and why he should have simply struck some of the language filed, or apologized to the court.
“A true managerial lawyer sets an ethical rule-following example to his subordinates, not cheerleading their deplorable conduct,” Strauch said.
Office of Disciplinary Counsel special counsel Tim Strauch questions a witness before the Commission on Practice on Oct. 9, 2024. (Photo by Blair Miller, Daily Montanan)
He outlined cases in other states which he said were similar to Knudsen’s for which attorneys faced punishment, discussed exact words Knudsen or his deputies used in court filings, and worked to dispel the assertion that all the conduct was simply based on his office’s defense of the Legislature.
“The notion that because one’s client wants you to do something as a lawyer means it excuses your ethical obligations in any way, shape or form is so antithetical to the rules and our rule of law and our system of justice, I’m not even sure how to express it in words, and I know how to use words,” Strauch said.
He acknowledged that Knudsen on Wednesday said he might have done things differently if the 2021 fight happened today and that sometimes lawyers say things they regret in the “heat of the battle.” But they apologize, he said.
He said there were no prior Montana attorney disciplinary cases “that approach the level of misconduct” in Knudsen’s case, then cited several cases in which attorneys received either public admonitions, suspensions, or were disbarred.
Strauch hinted that he had faced threats about the case and said anyone who believed he willingly signed up to be special counsel was “dead wrong.” And after outlining his case against Knudsen and why he believes the case is perhaps the most serious the Commission on Practice has ever had to consider, he declined to make a recommendation for discipline to the commission.
“I can’t. I can’t. And the reason I can’t is I can’t relate to this,” Strauch said. “It is so antithetical to what I understand it is to be a lawyer that I am speechless.”