HELENA — On Friday, Montana’s highest court heard arguments on whether they should uphold a recommended disciplinary action against the state’s top elected attorney.
As the Montana Supreme Court considered the professional conduct case against Attorney General Austin Knudsen, justices had sharp questions about how the case got to this point and where to go from here.
(Watch the video to hear more from Friday's arguments.)
In October, an adjudicatory panel of the Montana Commission on Practice recommended that Knudsen be suspended from practicing law for 90 days, arguing that he violated the ethical code for lawyers in his handling of a long-running dispute between the Montana Legislature and the judicial branch.
While the Commission on Practice makes recommendations for disciplining attorneys, it’s the Supreme Court that makes the final decision on what – if any – action to take.
The case dates back to 2021, when Knudsen represented Republican legislators who issued subpoenas for and received internal emails from Supreme Court justices, lower court judges and judicial branch staff. They were seeking information on whether judges had expressed opinions on proposed bills the Legislature was considering, arguing that that practice created concerns about due process and impartiality when the bills faced legal challenges in their courts.
The Montana Supreme Court blocked the subpoenas, ruling they exceeded the Legislature’s authority. Knudsen asked the court multiple times to reconsider, and eventually asked the U.S. Supreme Court to intervene.
The complaint against Knudsen argued that he and attorneys working for him had violated their ethical obligations during that legal battle, by not immediately returning the emails after a court order and by making several statements that accused justices of improper conduct.
Solicitor General Christian Corrigan, representing Knudsen in Friday’s arguments, said the ethical rules shouldn’t be used to stop all criticism – even harsh criticism – of judges. He said the procedures of the Commission on Practice hadn’t given Knudsen a fair chance to defend his actions, and that the complaint has to be seen in context of the politically charged situation Knudsen was in.
“The types of statements the attorney general was making and the arguments he was making were all based on his client as a co-equal branch of government and what they had uncovered,” said Corrigan. “Regardless of whether those statements about bias and conflict of interest, were ultimately true, the point is, they were objectively reasonable under the circumstances.”
Tim Strauch, an attorney from Missoula, served as special counsel for the Office of Disciplinary Counsel, which investigates complaints of professional misconduct against lawyers. On Friday, he reiterated his argument that Knudsen’s statements had undermined confidence in the judiciary. He said Knudsen’s responsibility to represent the Legislature wasn’t enough to justify his actions.
“There's no doubt in my mind that the Legislature felt very strongly that this court had engaged in misconduct, and there is no doubt in my mind that they retained the strongest advocate in the state that they could, and there is no doubt in my mind that he fought vigorously for his client,” Strauch said. “Bravo to all those things. Where he crossed the line, I believe – and I'm asking this court to draw this line – is attacking the integrity and qualifications of a court – completely unnecessary.”
Newly elected Chief Justice Cory Swanson and Associate Justice Katherine Bidegaray weren’t on the Montana Supreme Court when the issues behind this case first came up, and they were the only justices who didn’t recuse themselves. Five district court judges from around the state are filling in for the recused justices.
During Friday’s hearing, the justices and judges pressed Corrigan on why the attorney general’s office didn’t officially seek a stay on the order to return the emails, and whether Knudsen’s actions as the top lawyer in the state would have a bigger impact on the behavior of other attorneys. They questioned Strauch on why Knudsen’s statements should be treated differently than the other criticism judges receive, and why the adjudicatory panel’s recommendation didn’t go into greater detail about their findings of fact.
Swanson questioned Strauch about the objections Knudsen’s attorneys raised to the Commission on Practice’s procedure.
“This thing's a mess from start to finish,” said Swanson. “I agree with you, a whole bunch of their statements and conduct on the front end look bad. But the proceeding – ruling on things without him having a chance to respond, and issuing this immediately before the election – that looks political.”
Strauch said the hearing occurred so close to the election in part because Knudsen’s team asked to delay it.
Swanson also asked Strauch whether a 90-day suspension – leaving the state with an attorney general who can’t practice law for three months – would be an extreme punishment in this situation.
“My request is that the court follow the commission's recommendation,” Strauch said. “Both parties agree that that does not create a constitutional crisis. It doesn't set up a vacancy in the office.”
Swanson asked Corrigan how the court should move forward.
“We can’t wind back the clock,” Swanson said. “We're stuck with conduct that I've never seen from an attorney general. And assuming all the procedural problems leave us with a very difficult package to wrap up, what's your best recommendation on the level of admonition or censure or anything from this court?”
Corrigan said disciplining the attorney general could further damage confidence in the judiciary.
“I think what the court should do now is do what no branch of government did in 2021, and that's to turn down the temperature and allow everyone to move on by dismissing the complaint,” he said.
Corrigan said, regardless of what the court decides about Knudsen, they could provide more clarity for the future about what type of statements are acceptable for attorneys in Montana.
There was a full audience in the Supreme Court chambers for Friday’s arguments, made up overwhelmingly of supporters of Knudsen – including more than a dozen Republican state lawmakers.
The court, as is their usual practice, did not take any immediate action after the hearing.
