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)
Earlier this month, a legal panel held a hearing on a 41-count ethics complaint against Montana Attorney General Austin Knudsen, and a decision is pending on whether the state’s chief legal officer should have his law license sanctioned.
The decision could potentially jeopardize Knudsen’s ability to be Montana’s attorney general should he receive the most severe punishment of disbarment.
The two-day hearing this month before the Commission on Practice, which hears disciplinary complaints against lawyers in Montana, came after a special prosecutor found the grievances filed against Knudsen and his staff merited a formal complaint — and ensuing public process.
But more than two years earlier, a previously appointed special prosecutor had recommended a different sanction — only a private admonition.
In a May 2022 memo, Office of Disciplinary Counsel special counsel Daniel McLean said he recommended a private letter be sent to avoid a “political fight” playing out in public between the Legislature and the Judiciary and undermining public confidence in the judicial branch.
The memo was attached as an exhibit to a filing this summer in which Knudsen’s team told the commission it should dismiss the complaint outright.
In a filing leading up to the hearing, lawyer Christian Corrigan on behalf of Knudsen brought up McLean’s earlier recommendation for a quiet reprimand he made as previous special counsel for the Office of Disciplinary Counsel.
“ODC’s current Special Counsel might not like or agree with that conclusion. But ODC should in fairness at least acknowledge it and explain why ODC’s prior Special Counsel was wrong. That’s something ODC’s response brief fails to do,” Corrigan wrote.
Knudsen is running for re-election this year, and his supporters point to the change of course in the case as evidence the “deck was stacked” against the incumbent and referred to the panel as a “kangaroo court commission.”
Attorney General Austin Knudsen on the stand at his Commission on Practice disciplinary hearing on Oct. 9, 2024. (Photo by Blair Miller, Daily Montanan)
Aside from Knudsen’s attorneys attaching the recommendation as an exhibit in the case, the details about why the commission rejected McLean’s recommendation, and exactly what happened during the next year that led to new special counsel Tim Strauch filing the complaint against Knudsen, remain confidential.
The only publicly available documents in the case are those filed with the Commission on Practice in the 13 months since Strauch filed his complaint in September 2023. Following the close of the hearing and emergence of the 2022 memo, the Daily Montanan has reviewed those records.
According to those filings, the Commission on Practice has for the past year rejected any assertion by Knudsen and his attorneys that either it or the Office of Disciplinary Counsel is doing anything more than following the investigative process that takes place after a person files an ethics grievance against any attorney in Montana.
Additionally, public records illustrate the Commission on Practice accepted arguments showing the misconduct counts Knudsen faces are not dissimilar to charges attorneys general or state attorneys have faced, and been sanctioned for, in other states.
“There is no basis for the contention that any part of this process has been ‘weaponized,’ a charge that seems a current popular label for public relations rather than substantive,” panel Chairperson Randy Ogle wrote in the Sept. 13 order denying Knuden’s request for summary judgment to dismiss the case.
The records also show that the two different special counsels came to similar conclusions that Knudsen had violated attorney ethics rules, although they reached different outcomes in terms of possible sanctions.
Two attorneys filed grievances against Attorney General’s Office
The first special counsel’s recommendation was made nearly a year after two attorneys filed grievances against Knudsen and two of his deputies in the Attorney General’s Office in 2021.
The lawyers alleged misconduct in Knudsen and his staff’s representation of the Legislature in a fight with the Supreme Court over subpoenaed judiciary emails and a conflict over whether the court administrator should be polling judges about bills that would affect the judiciary – including one the court system had to consider after a lawsuit sought to block it.
The 2021 fight was not only the source of the initial grievances filed against Knudsen and his deputies; it kicked off a political firestorm between the two branches of government that has largely grown since.
The Republican-controlled Legislature convened a select committee to investigate what happened that year, issuing a report critical of the judiciary in December 2022. Democrats on the committee alleged the report was a partisan attack on the judiciary.
How the initial recommendation became public
In the wake of political tensions in 2021, the previous special counsel recommended the private letter be sent to Knudsen. The letter would be issued in lieu of the filing of a complaint and the ensuing public process to avoid undermining public confidence in the judicial branch, McLean wrote in his May 2022 recommendation.
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)
But McLean’s recommendation was not made public until Knudsen’s attorneys alluded to it in a motion for summary judgment filed in the case this past July as part of their effort to show bias on behalf of the investigators at the Office of Disciplinary Counsel, the body that receives grievances about attorneys, investigates them, and recommends decisions.
While the disciplinary hearing was underway Oct. 9 and 10, Knudsen’s campaign manager Jake Eaton released a memo to certain people that made reference to McLean’s recommendation and the commission’s subsequent ask for further investigation.
“The Commission didn’t like that and brought a more zealous prosecutor,” Eaton wrote in the memo released to some members of the media and others.
Eaton called Strauch, the new special counsel who filed the 41-count complaint and oversaw prosecution during the October hearing, a “longtime Democrat donor and activist” and suggested he “likely has a personal axe to grind against Knudsen.”
Eaton’s memo also pointed out that Strauch had previously donated to Democrats, as had McLean. Campaign finance records confirm this fact; McLean has supported Democrats in multiple campaigns in recent years but also supported Republican and now-Lt. Gov. Kristen Juras’ run for the Supreme Court in 2016, campaign finance records show.
McLean was a member of the Commission on Practice from 2010 to 2018, while Strauch is the former chief disciplinary counsel for the Office of Disciplinary Counsel.
Separately, the Montana Republican Party’s chairperson called the hearing a “political show trial” before a “kangaroo court commission,” and a Republican senator said “it was clear that the deck was stacked” against Knudsen in the case and at the hearing.
McLean found violations, but recommended private admonition
But McLean hadn’t suggested Knudsen or other staff who were subjects of the 2021 grievances were blameless.
According to McLean’s memo, signed May 27, 2022, Knudsen indeed violated three rules of professional conduct either on his own or through his “ratification” of statements made by either then-Lieutenant Attorney General Kris Hansen (who is now deceased) or Chief Deputy Attorney General Derek Oestreicher (who has since left the office) while the Attorney General’s Office was representing the Legislature.
The complaint filed by Strauch alleges the filings contained derogatory remarks about the court and said the attorneys blatantly ignored a court order.
The three rules McLean addressed are among the same rules that Strauch charged Knudsen with violating in the September 2023 complaint. McLean’s memo notes that a California attorney, who is also a member of the State Bar of Montana, had filed grievances against all three attorneys in 2021, while a Democratic attorney from Billings filed a fourth grievance against Hansen that same year.
A flowchart showing the process a grievance filed against an attorney goes through with the Office of Disciplinary Counsel. (Courtesy ODC Annual Report 2023)
The four grievances were investigated together because they were “virtually all the same,” McLean wrote. He found the complainant from California had “persuasively and thoroughly” argued why Hansen and Oestreicher’s filings and statements had violated Montana Rules of Professional Conduct that govern attorney conduct in Montana, but there was some doubt about whether the violations Oestreicher faced could be proven by clear and convincing evidence, he wrote.
McLean found that Knudsen is responsible for the conduct of both attorneys under one rule, and that he had violated two other rules that say an attorney cannot falsely or with reckless regard question the integrity of a judge or engage in conduct “prejudicial to the administration of justice.”
“In addition to Rule 5.1 violations by Knudsen analyzed above, Knudsen on his own, violated Rules 8.2 and 8.4 by his specific ratifications of Hansen’s and Oestreicher’s letters and filings, and MRLDE Rule 8(A)(7),” McLean wrote.
But he recommended the review panel give only a private admonition to Knudsen, which would have prevented a formal complaint from being filed and the subsequent public adjudicatory hearing from happening — like the process that has played out for the past year.
“Special Counsel believes that a formal complaint, investigation and trial would exacerbate the issues between the Legislature and Judiciary …,” McLean wrote. “Admonition by the Commission, which would be confidential, would send a clear message to the Attorney General and his staff attorneys and notify the public of the Attorney General’s office’s improper conduct.”
McLean told the Daily Montanan this week he agreed to be special counsel on the case because he had previously been on the Commission on Practice and that he saw the job as a service to the State Bar of Montana.
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The bar awarded him in 2019 with its top honor, the William J. Jameson Award.
McLean said his appointment and investigation was “not political at all” and that he did not want to prosecute the case because he did not have expertise doing so. He also noted that the commission rejected his recommendation.
“It had nothing to do with politics, just with the rules of professional conduct and case law around the country,” he said.
Knudsen’s attorney characterizes complaint as ‘attack’ on AG
The attorney who signed Knudsen’s briefs and motions in the case, Montana Solicitor General Corrigan, brought McLean’s memo up in his July 3, 2024, motion for summary judgment, part of the public record following the 2023 complaint.
Montana Solicitor General Christian Corrigan questions a witness at AG Austin Knudsen’s hearing in front of the Commission on Practice on Oct. 9, 2024. (Photo by Blair Miller, Daily Montanan)
He argued, based on the separation of powers between the three branches of government, that any rules governing attorney conduct “cannot interfere with (Knudsen’s) exercise of constitutionally conferred authority” as attorney general.
“Put simply, this type of collateral attack on the Attorney General—weaponizing the Supreme Court’s attorney regulatory powers in response to a dispute between co-equal branches of government—upsets the Montana Constitution’s separation of powers, undermines the rule of law, and disenfranchises the electoral process,” Corrigan wrote.
“Permitting out-of-state lawyers who lack any connection to the proceedings to wield an ethics grievance against an Attorney General for his public filings violates the will of the electorate, chills the Attorney General’s actions, and thwarts the proper function of government provided for in Montana’s Constitution,” he continued. “Such dangers abound here.”
That is when he brought up McLean’s initial recommendation of a private admonition. He wrote that the Commission was “inexplicably unsatisfied” with McLean’s recommendation and ordered further investigation, which Corrigan said “resulted in no new factual or legal information.”
Corrigan called Strauch’s subsequent complaint “unprecedented” and said those claims combined highlighted “the danger of judicial intrusion into the executive branch in Montana’s constitutional framework.”
During Knudsen’s hearing on Oct. 10, Strauch in his closing arguments agreed the charges against Knudsen were unprecedented.
“The attorney general has repeatedly called this complaint unprecedented,” Strauch said. “I agree. It is unprecedented because this conduct is unprecedented.”
Commission largely dismissed Knudsen’s arguments ahead of hearing
In the three-plus months leading up to Knudsen’s hearing earlier this month, attorneys for Knudsen and the Office of Disciplinary Counsel, the prosecutor in the case, made other arguments as to why the case should or should not be dismissed and whether certain witness testimony should be allowed at Knudsen’s disciplinary hearing.
“(Knudsen) is the most powerful attorney in the State of Montana, and with great power comes great responsibility,” Strauch argued in his brief opposing Knudsen’s request for summary judgment. “His professional obligations are not lessened by his position, they are heightened.”
Strauch cited numerous cases across the country in which attorneys general or attorneys for the state had been punished for similar conduct, saying those same attorneys had made the same claims as Knudsen that had all failed.
Corrigan had cited the Trump immunity case from the U.S. Supreme Court to claim the Office of Disciplinary Counsel’s complaint “triggers the same grave concerns for the Attorney General because it directly threatens his ability to fulfill his constitutional role.”
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)
But Strauch said there was no analogous situation, in part because Knudsen is not president of the United States, and because Knudsen chose to swear he would abide by attorney conduct rules when he joined the bar.
“He, like any every (sic) other member of the bar, is subject to the Montana Supreme Court’s disciplinary authority,” Strauch wrote. “It is not the COP or the Montana Supreme Court that is ignoring the Montana Constitution or attempting to violate the separation of powers: it is the Attorney General.”
In a reply to that filing, Corrigan again brought up McLean’s recommendation to argue that Strauch’s filings did not square with McLean’s.
He also argued that the complaint should be dismissed because none of the justices of the Montana Supreme Court issued any discipline against Knudsen, Hansen or Oestreicher while the court fight was going on in 2021 and in 2022, when the state’s appeal to the U.S. Supreme Court was rejected.
“Judges, too, can police misbehavior,” Corrigan wrote. “The fact that they did not report any here speaks volumes.”
But in the Sept. 13 order on the motion for summary judgment, Ogle, the panel chair, dismissed nearly all of Knudsen’s contentions, including that the case was politically motivated.
“The Commission rejects Respondent’s contention these proceedings are a ‘constitutional crisis’ or are politically motivated,” Ogle wrote. “Such a histrionic argument ignores the allegations of the Complaint, which in their essence charge a failure to be civil, courteous, and respectful.”
Ogle found that Knudsen had not established that his duties as attorney general were hindered by his oath as an attorney and the rules by which attorneys must abide, and that his conduct during his representation of the Legislature – not the representation itself – was at hand in the case. He said no provision of the rules of professional conduct excuses any attorney from being subject to the rules.
He further found that accepting Knudsen’s argument that the judicial branch was exercising powers of the executive branch by regulating the attorney general’s conduct would “emasculate” that grant of power to the judiciary.
“To accept the Respondent’s position that whenever he files a pleading or appears in court he is immune from any responsibility for his conduct would be to invite chaos and is contrary to an express provision of the Montana Constitution that grants the courts the right to control attorneys’ conduct,” Ogle wrote.
Ogle criticized Knudsen’s argument that allowing anyone to file grievances and complaints against attorneys in the Attorney General’s Office over their filings could lead to “open season” on lawyers.
“That argument displays either an ignorance of the disciplinary process or an intentional mischaracterization of it,” Ogle wrote.
A perhaps prescient prediction
The documents also show the Commission on Practice scolded Knudsen and his attorneys for even bringing up McLean’s recommendation in the current case. The panel said referencing it was “inappropriate and irrelevant” because the Commission on Practice rejected the recommendation in July 2022 and told the Office of Disciplinary Counsel to investigate further.
Though it was improper, as Ogle said, for Knudsen to bring up McLean’s recommendation in court filings, McLean’s idea that the rift between the Legislative and Judiciary could be further amplified and undermine Montanans’ confidence in the judicial branch was arguably borne out.
Knudsen and his office have not shied away from criticizing the Supreme Court when they have been displeased with its decisions on legislation his office defended.
He and his office since the summer 2022 have called the court “disgracefully radicalized” and a “corrupt institution in dire need of reform” upon which “left-wing judges” sit, according to statements from his office.
And this year, after the Montana Supreme Court struck down several bills passed by the Republican-held Legislature during the 2021 and 2023 sessions, and ruled against their favor in other instances, Senate President Jason Ellsworth, R-Hamilton, convened another select committee, this time on “judicial oversight and reform.”
The committee is drafting around a dozen for the 2025 session that aim to make broad changes to the judiciary’s power and hand some of it over to the Legislature or newly created courts.