Commission on Practice says charges against Knudsen can continue

The oversight body charged with disciplinary complaints of Montana’s lawyers have completely rejected Montana Attorney General Austin Knudsen’s claims that he shouldn’t be subject to discipline because of his political position, or that they violate the separation of powers between branches of government.

This means that 41 charges of violating the rules of professional practice, which could lead to a suspension or revocation of the law license of the state’s top attorney, will continue.

Attorneys for Knudsen declined to comment on the ruling. The Montana Attorney General’s Office said it would not comment on the case when reached by the Daily Montanan.

In an order by the Commission on Practice of the Montana Supreme Court, which is charged with overseeing complaints against fellow bar members, it said that Knudsen and his attorneys have incorrectly characterized these complaints as political.

“Contrary to the respondent’s (repeated) pronouncements that these proceedings are political in nature, they clearly are not,” the commission said. “No allegation is asserted or implied in the complaint that the charges are based on anything other than claimed violation of the Montana Rules of Professional Conduct by an attorney.”

The commission said that Knudsen, in his request to dismiss the 41 charges, tried to paint them as politically motivated for the way he’s conducted himself while as the Montana Attorney General. Those charges stem from his often rocky, contentious relationship with the Montana Supreme Court.

But the commission said that in all circumstances, Knudsen was acting as an attorney, and on behalf of the people of Montana, who are the attorney general’s client. And, the Montana Constitution also requires the state’s attorney general to be a member of the bar, which requires an oath to follow the rules of professional practice.

Knudsen also tried to claim that the charges violated the separation of powers doctrine found in Montana’s and the U.S. constitutions because it was asking the state’s judiciary to stand in judgment of his job as an attorney, part of the elected executive branch.

“(Knudsen) has not established that any of his duties as attorney general are prevented or hindered by his adherence to his oath and the Montana Rules of Professional Conduct,” the ruling said. “The commission is unconvinced that these proceedings are based on the respondent discharging official duties…It certainly is not an official duty of the attorney general to commit the actions alleged in the complaint. Under the respondent’s theory, he is not answerable at all to the court for any conduct as long as it fits his definition of ‘official.’”

That particular point has been something that Knudsen has previously claimed insulates him from discipline because the conduct was done as part of his job. Knudsen has claimed the disciplinary proceedings represent a “constitutional crisis.”

“Such a histrionic argument ignores the allegations of the complaint, which in their essence charge a failure to be civil, courteous and respectful,” the commission said.

Furthermore, the commission points out that the Montana Supreme Court has repeatedly said that “not every matter touching on politics is a political question.”

However, the commission also said that the state’s constitution gave exclusive power to regulate the judiciary to the Montana Supreme Court, and that while Knudsen may be a part of the executive branch, the conduct in question was as an attorney, a member of the judiciary.

The commission quotes several federal cases, as well as state cases, and even textbooks on attorney practice that push back on Knudsen’s claim that the state Supreme Court cannot sit in judgment of an executive branch leader.

“The ability to punish disobedience to judicial order is regarded as essential to ensuring that the judiciary has a means to vindicate its own authority without complete dependence on other branches,” it said, quoting from the U.S. Supreme Court. “Courts cannot be at the mercy of another branch in deciding whether such proceedings should be initiated.”

As attorney general, the commission said that Knudsen remains a lawyer always, whether his client is the state, its agencies or its people.

“In control of litigation, the attorney general, like every other attorney, has the duty to conform his conduct to the rules of professional ethics,” it said. “The commission rejects (Knudsen’s) argument in his reply brief that he or any other lawyer can be disciplined simply by someone filing a grievance or that the process is an ‘open season’ on lawyers.”

The commission also pointed out that the annual report prepared by the Office of Disciplinary Counsel, which acts as a prosecutor and investigative arm of the Supreme Court which oversees attorney conduct, dismisses “a significant percentage of grievances… without merit.”

“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,” the commission said.

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, a nonprofit newsroom.