Montana’s legal disciplinary body can avoid becoming a tool for partisan politics

Montana’s Commission on Practice is the regulatory body of the legal profession here, tasked by the state Supreme Court with overseeing the ethical and professional conduct of attorneys’ practice of law in the state.

Its enforcement arm is the Office of Disciplinary Counsel, which investigates and decides whether to prosecute complaints of unethical conduct by lawyers. Both these entities are appointed by the Montana Supreme Court.

The attorney general is the state’s chief lawyer, and he or she is elected by you, Montana voters. He is one of five state-wide elected officials you, voters, vote in to office to govern this state.

This week, the Office of Disciplinary Counsel, in a hearing before a panel of the Commission, appears to be targeting Republican Attorney General Austin Knudsen for political reasons rather than professional misconduct. The Office of Disciplinary Counsel, a body meant to help the Commission uphold the integrity of the legal profession, has got itself in an awkward position that threatens to make it a tool of partisan politics, undermining the public’s (already waning) trust in the legal profession.

When a professional oversight body like the Office of Disciplinary Counsel becomes entangled in political games, it loses credibility. The legal profession relies on trust — trust that lawyers will act ethically and that disciplinary bodies will hold them accountable without bias. If that trust erodes, the whole system — and the public at large — suffers.

In the case of the Office of Disciplinary Counsel’s actions against Knudsen, that trust is in jeopardy. Worse, the hundreds of thousands of Montana voters who chose him to represent them may be stripped of the power of their vote by this unelected regulatory body appointed by another branch of government. If this happens, it will destroy both the voters’ choice and the separation of powers required by the constitution.

Why does this particular process smell of partisanship? First, the complaint triggering this process was filed by a lawyer from California whose connection to Montana seems tenuous at best. Second, her complaint concerns the attorney general’s oversight of a deputy engaged in a political debate, not a legal proceeding. Third, and most suspiciously, the first Office of Disciplinary Counsel-appointed special counsel, a Montana lawyer of long experience and unquestioned integrity, investigated the California attorney’s complaint and recommended the lowest possible level of discipline, a private letter. That lawyer had even donated to Knudsen’s Democratic opponent during the 2020 election. Even with his political opposition to Knudsen, the original special counsel recommended the lowest level of discipline, which was not public.

That seems significant. It obviously did not sit well with those determined to make a political example out of Knudsen. So, they took a “do-over” and brought in a different more partisan hand-picked special counsel to get a different answer, one they liked. The new prosecutor is someone with a longer history of donations to Democratic causes and activism.

This selected prosecutor wasted no time in ramping up the charges, filing 41 counts against Knudsen, an absurd number when compared to similar cases. For context, the Office of Disciplinary Counsel has charged lawyers who embezzled from clients with far fewer counts. The message here is clear: this isn’t about the severity of any alleged misconduct but about weaponizing the disciplinary process to inflict maximum damage on Knudsen’s political career. If pursued by the Commission after the hearing this week, it will not only harm its own standards but also our democratic process by furthering, perhaps inadvertently, a partisan attack.

The Office of Disciplinary Counsel’s actions could set a dangerous precedent. The disciplinary process should be a non-partisan mechanism designed to protect the integrity of the legal profession. Moreover, when it is employed against a state-wide elected official, while he or she must be held to the same standards as other lawyers, it must be applied with care and sensitivity to its impact on our constitutional, democratic process. Only in the most outrageous and indisputable and impactful cases of ethical violations can it be allowed to nullify the will of the voters.

The Commission itself can ensure this proceeding does not threaten this constitutional crisis. It can decide, notwithstanding an earlier decision to seek greater penalties, to accept the original, expert recommendation that was clearly made professionally and without partisan goals in mind.

Montanans deserve this level of wisdom from the Commission. The sanctity of their votes and their constitution requires it.

A native of Miles City, Jon Metropoulos is an honors graduate of the University of Montana School of Law and has been a licensed attorney in Helena for nearly four decades. He is admitted to and has practiced in all the state and federal courts of Montana.