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)
The lead attorney prosecuting the ethics case of Montana’s top attorney said in his latest filing before the Montana Supreme Court that the case isn’t about the separation of powers, a Constitutional crisis or even the First Amendment.
Instead, Timothy Strauch who led the case for the Office of Disciplinary Counsel, the arm of the Montana judiciary that handles attorney discipline, said that the 41 ethics charges that the Commission on Practice affirmed against Montana Attorney General Austin Knudsen was a matter of an attorney not following the rules of conduct that he swore to uphold when he was admitted to practice law.
The Commission on Practice upheld 41 ethics violations against Knudsen for his role in legal stand-off that involved all three branches of Montana’s state government. The Legislature subpoenaed emails from the judiciary using the executive branch’s Department of Administration, which housed them. Knudsen defended the Legislature and during the process send messages to the judiciary threatening not to follow orders, and refusing to return an estimated 5,000 emails.
The 85-page brief, which was about half the size of Knudsen’s legal submission that argued why the Montana Supreme Court should dismiss the charges or exonerate him, inches the Montana Supreme Court closer to deciding whether to accept the recommendation of the Commission on Practice, which suggested a 90-day suspension, or whether to move in a different direction. Ultimately, according to state law, both the Office of Disciplinary Counsel and the Commission on Practice, which initially adjudicate the claims against attorneys, are both merely advisory: The Montana Supreme Court will make the final decision whether to punish Knudsen for the 41 ethical violations, and if so, it will determine his fate.
“The Attorney General repeatedly, knowingly and intentionally disobeyed his sworn oath as a Montana lawyer and his obligations under an order of this court. Further aggravating those unrelated facts, to this day, the Attorney General refuses to acknowledge the wrongful nature of his conduct,” the brief said. “Clear, convincing and undisputed evidence establishes that the Attorney General and his subordinates disregarded, disrespected, and undermined his oath, the rules at issue, and this court’s order. Rather the Attorney General brazenly asserts that he alone — among all Montana lawyers — is above the law.”
Also at stake is the temporary leadership of a government agency: Knudsen is the Montana Attorney General, and is one of five officers mandated by the state constitution and elected by the voters. However, that same Montana Constitution requires that the attorney general be a member of the bar in good standing, something that would end for 90 days if the state’s highest court accepts the recommendation. If Knudsen was unable to serve — for any length of time — it would be up to Gov. Greg Gianforte to name a replacement in Knudsen’s absence, according to state law.
Meanwhile, Strauch responded to Knudsen’s allegations which were expansive, ranging from an argument that the Montana Attorney General is above discipline by the court because of his role as a leader of an executive branch agency, therefore creating a separation of powers issue; to an argument that he is being punished because of merely doing what his clients, the Legislature, bid him to do.
The filing also points out that neither Knudsen nor his attorneys dispute the accuracy of the statements which led to the charges, but Strauch said that Knudsen has refused to take responsibility.
For example, Knudsen during his disciplinary hearing before the Commission admitted that things could, and should, have been done differently.
“Juxtaposed against that candid admission, however, is the repeated refusal to admit that any of the conduct or published language, which admittedly would not have been used to advance his client’s position, is violative of the rules to which he is unqualifiedly required to adhere,” the brief said.
Strauch’s response said that all of Knudsen’s defenses didn’t change the fact that Knudsen is a licensed attorney, and as such, has a duty to uphold the standards which the Commission said he violated on 41 different counts, including refusing a court’s lawful order, refusing to turn over property in a timely or legal manner, and failing to properly supervise attorneys who were working on his behalf.
“The Attorney General’s failure to take any remedial action against his subordinates’ clear violations is second only to his endorsement of their improper conduct,” the brief said. “A true managerial lawyer sets an ethical-rule-following example to his subordinates; he does not cheerlead their deplorable conduct.”
All of those things, Strauch said, have nothing to do with the conflict which arose as a result of hasty legislative subpoenas and involved seizing email that belonged to the judicial branch. Instead, Strauch said that attorneys are not some kind of chess pieces to be moved by clients, rather they are required to guide clients through the legal process in a way established by the rules of professional conduct.
“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 Montana Rules of Professional Conduct,” the filing said, quoting the decision of the Commission on Practice.
Furthermore, the Office of Disciplinary Counsel argues that because Knudsen, the state’s top attorney, has flouted the law and ignored his oath, that it sets a dangerous precedent which undermines the rule of law, allowing the public and other attorneys to potentially disregard court orders — something, Strauch said, would eventually lead to chaos.
“When those tasked with the job of enforcing the law break it instead, the public rightfully questions whether the system itself is worthy of respect,” the brief said.
The brief filed by Strauch also lays out the various examples of Knudsen disobeying court orders or showing contempt or hostility toward the court which both the ODC and Commission on Practice said violated the state’s code of conduct.
“At the Commission hearing, the Attorney General denied those statements were disrespectful, intemperate, contemptuous, insulting or undignified of the profession,” the brief said.
Some of those examples that were presented included messages from Knudsen or his office which said:
“(The court administrator’s) current petition seeks yet another court order which will not bind the Legislature and will not be followed.”
“(The court’s statement) is inaccurate almost to a word. It assumes facts and ascribes malcontent so brazenly, it betrays a self-admission that the court’s posture is adversarial, not adjudicatory.”
“Judicial self-dealing on this scale might be unprecedented in the nation’s history.”
At least a half a dozen other statements included phrases like “inappropriate behavior” or “judicial misbehavior.”
PR 23-0496 Reply to Objections-COP — Response_Objection