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Ethics office accuses Montana attorney general of violating professional conduct rules

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Posted at 8:19 AM, Sep 06, 2023
and last updated 2023-09-06 10:19:18-04

The professional organization that investigates claims of attorney misconduct in Montana filed a complaint against Attorney General Austin Knudsen on Tuesday.

The complaint, filed by Missoula attorney Timothy Strauch on behalf of the Montana Supreme Court-appointed Office of Disciplinary Counsel, says Knudsen and attorneys who work for him at the state Department of Justice undermined public confidence in the judicial system with their communications to and about the Montana Supreme Court during a lengthy separation-of-powers conflict with Republican legislators.

Such a complaint could, in the most extreme outcome, lead to its target’s disbarment. The complaint against Knudsen now awaits a hearing before a review panel that could dismiss it or recommend action for consideration by the state Supreme Court, reports the Montana Free Press.

The complaint alleges 41 violations of the Montana Rules of Professional Conduct stemming from 2021 litigation about the Legislature’s ability to subpoena judicial documents that marked a high point in that conflict. Many of the counts focus on a letter from the late Chief Deputy Attorney General Kris Hansen to Justice Jim Rice — who acted as chief justice in the stead of Mike McGrath during the lawsuit — flouting a court order that quashed legislative subpoenas for court documents and accusing the court of interfering with legislative business.

“The Legislature does not recognize this Court’s Order as binding and will not abide it,” Hansen wrote.

The complaint alleges that “sending the Court a letter to reargue an issue, resist the ruling, or insult the judge constitutes a knowing disobedience of an obligation under the rules of a tribunal,” a violation covered under professional conduct rule 3.4: “Fairness to Opposing Party and Counsel.”

The Office of Disciplinary Counsel takes similar issue with a letter from Knudsen to members of the Supreme Court accusing them of impropriety and inaccuracy, statements the complaint describes as “contemptuous, undignified, discourteous, and/or disrespectful.”

Based on that and other counts, the Office of Disciplinary Counsel makes a case that “Knudsen and lawyers under his supervision routinely and frequently undermined public confidence in the fairness and impartiality of our system of justice by attempting to evade the authority of the Montana Supreme Court and assaulting the integrity of the judiciary and the individual Justices who were duly elected by Montana citizens to make decisions.”

And while some of the counts pertain specifically to actions taken by attorneys serving under Knudsen, the complaint repeatedly highlights a rule of professional conduct stating that a lawyer with complete managerial authority over their firm — in this case, Knudsen’s managerial authority over the state Department of Justice — “shall be responsible for another lawyer in the firm’s violation of the Rules of Professional Conduct.”

A spokesperson for Knudsen disputed the complaint’s claims Tuesday evening..

“The Attorney General looks forward to filing his response with the commission,” said spokesperson Emilee Cantrell. “The allegations are meritless and stem from a legitimate dispute between two branches of government. No one should be persecuted for holding a different opinion than those in power.”

Cantrell also branded the complaint a “political stunt,” referencing seven campaign donations Strauch made to Democratic candidates between 2000 and 2020, and questioning why the complaint is being made public now — when Knudsen is presumably gearing up to defend his position as attorney general against declared 2024 Democratic candidate Ben Alke— as opposed two two years ago, when the actions at the complaint’s core were current. Alke is the only Democrat filed in the race.

Attorney practice complaints can be filed up to six years after an alleged incident.

The attorney discipline system in Montana comprises two agencies that work in tandem: the Office of Disciplinary Counsel and the Commission on Practice. Both are established and their members appointed by the Montana Supreme Court, which, under the state Constitution, “may make rules governing appellate procedure, practice and procedure for all other courts, admission to the bar and the conduct of its members.”

The Office of Disciplinary Counsel reviews and investigates grievances, which anyone can file against any lawyer in the state. If the office decides to pursue disciplinary action, it requests approval from a review panel composed of members of the Commission on Practice to file a complaint. If the panel authorizes that request, an attorney with the Office of Disciplinary Counsel files a formal complaint with the Supreme Court.

That’s the current stage of the complaint against Knudsen. It’s not known who filed the initial grievance or when.

The complaint against Knudsen has one more hurdle to clear before it can reach the final arbiters of attorney conduct in the state: the Montana Supreme Court. Another panel of Commission on Practice members will hold a hearing about the complaint and provide the respondent — Knudsen — the opportunity to mount a defense. The panel can then issue a report containing findings of fact and recommendations for disciplinary action, which can range from disbarment in the gravest cases to public admonition, with a number of other possibilities in between.

Pam Bucy, the top lawyer at the Office of Disciplinary Counsel, ran for attorney general as a Democrat in 2012 and previously served as an assistant attorney to Attorney General Mike McGrath, who is currently the chief justice of the Montana Supreme Court. Bucy appointed Strauch, who could not be reached for comment Tuesday, to handle the case.

The state bar itself declined to comment on a pending disciplinary matter out of “respect for the process and the attorneys involved.”