Montana Attorney General Knudsen faces law license suspension

Montana Attorney General Austin Knudsen could be suspended from practicing law for 90 days under a disciplinary council recommendation to the state Supreme Court.

The Commission on Practice recommended Wednesday that Knudsen’s license to practice law be suspended for three months for actions committed by himself or Department of Justice attorneys who he supervises. The commission found that Knudsen undermined the public’s trust in the legal system back in 2021 when the attorney general refused to comply with a Supreme Court order and disparaged justices. 

The Montana Supreme Court will decide the matter and isn’t required to follow the sentence recommended by the commission. Knudsen is campaigning for reelection currently. Every Montana attorney general since 1942 to seek a second term has been reelected. 

Broadly, the charge is that the attorney general and his subordinates violated rules “intended to preserve the public confidence in the fairness and impartiality of our system of justice in Montana,” prosecutor Tim Strauch said during Knudsen’s hearing Oct. 9.

In filing the complaint against the Republican attorney general in October 2023, Strauch said Knudsen violated the oath all attorneys are required to observe, and that disbarment should be a possible consequence.

“We obviously disagree with the recommendation made by the Commission on Practice and agree with the 2022 recommendation of the Office of Disciplinary Counsel’s first special counsel Daniel McLean that this could have been handled privately, avoiding a politically charged disagreement,” said Emilee Cantrell, a spokesperson for Knudsen. “In addition to objecting on the merits of the recommendation, we plan to address on appeal the COP’s due process violations and the multiple irregularities made throughout the proceedings.”

At his hearing, Knudsen said he would do things differently in hindsight, but he also denied any wrongdoing. The AG said he defended the interest of his client, the Montana Legislature, as lawmakers preferred.

“In addressing the recommended consequences for the Respondent’s conduct at issue here, we are guided not only by his oath as an attorney, but also by the duties of the office and responsibilities which he has undertaken as Montana’s Attorney General,” wrote commissioner Randal Ogle in Wednesday’s ruling. “His acknowledgment that in ‘hindsight’ less inflammatory language ‘should’ have been implemented during the course of his representation, and his consistent denial that any of the conduct complained of is violative of his oath as an attorney or the applicable Rules. Further, we fully appreciate, as the respondent testified, that he was under pressure from the Legislature, a situation verified by Respondent’s witnesses, who directed him to press the dispute with the Court to its ultimate conclusion.”

The ruling Wednesday addresses 41 counts alleging that Knudsen or his attorneys violated the state judicial system rules of professional conduct in 2021 while representing the Legislature in a subpoena power battle with the judiciary. At the core of the complaint is Knudsen’s office informing the Supreme Court that the Legislature wouldn’t recognize or abide by a court order on the matter. Later, Knudsen said the court “overlooked and misstated material fact,” while accusing the justices of “actual impropriety.”

Republican leaders in the 2021 Legislature had attempted to obtain judiciary emails, some of which showed judges throughout the judiciary participating in a poll concerning a state Senate bill that empowered the governor to make judicial appointments that at the time were done by a commission. 

Court Administrator Beth McLaughlin asked Supreme Court justices to intervene and block the emails from being released under subpoena from the Legislature. The justices obliged in April 2021 through a rare weekend order to lock down the emails. 

Knudsen argued that justices working on the weekend to grant the exceptional order, something not offered to any other Montanan, was disqualifying. 

Somewhere between 2,000 and 5,000 emails were handed over to the Legislature via Knudsen’s office. The emails quickly began appearing on websites. McLaughlin had argued that some of the emails contained private information, the kind protected from public disclosure. 

The state Supreme Court eventually ordered the attorney general to return the emails “immediately,” but Knudsen didn’t comply for eight months, arguing that he was taking the Legislature’s case to the U.S. Supreme Court and didn’t have to surrender the emails until after the nation’s highest court weighed in. The U.S. Supreme Court declined to take the case.