Knudsen makes his pitch to state’s highest court on why he shouldn’t be suspended
Attorneys for the state’s top lawyer say he was denied free speech, due process and at a minimum, case should be sent back
By Darrell Ehrlick for the Daily Montanan
In a sprawling 155-page defense of Montana Attorney General Austin Knudsen, attorneys trying to stop him from being suspended from the State Bar for 90 days — and, by extension, pause his tenure as the state’s top lawyer — give a multitude of reasons why the state’s Supreme Court shouldn’t punish him, including invoking the First Amendment.
They conclude that even if Knudsen did violate the state’s rules of professional conduct for attorneys, a discipline less severe should be imposed.
The filing, made late on Monday, is another step in the circuitous challenge that began during the 2021 Legislature, involved thousands of emails from the judicial branch of government, wound its way to the U.S. Supreme Court, only to have part of the matter put into the hands of the same people who Knudsen, at one time, threatened with subpoena.
The Montana Supreme Court has the final say in disciplining attorneys who are members of the Montana Bar, and they could be the final step in the case brought by the Office of Disciplinary Counsel, which levied 41 ethics charges against Knudsen, something that the state’s Commission on Practice affirmed, followed by a recommended punishment of a 90-day suspension. Now, the case will head to the Montana Supreme Court for a number of possible outcomes.
At the heart of the matter was an inquiry by members of the Republican-led Senate in 2021 to investigate the judicial branch, including seizing emails of the court system through a legislative subpoena sent to the state’s executive branch, which has oversight of the entire Montana government email systems. That prompted a protracted battle that involved all three branches of state government and concluded with the state Supreme Court ruling that the legislative initiative to take the email was improper and ordered their return, but not before many had been leaked to the public. Knudsen and his staff represented the Legislature, at times threatening that his office would not obey their orders, which became the genesis of the disciplinary charges against him as a member of the state’s Bar.
Nothing To See Here
In the filing to the Montana Supreme Court, attorneys for Knudsen lay out myriad reasons why it should either dismiss or modify the Commission on Practice’s ruling that Knudsen be suspended from practice for 90 days.
The documents say that they cannot respond to many of the ethical charges because they are either too vague or the commission unfairly didn’t allow Knudsen to present a defense, something that violates the legal concept and guarantee of due process.
“The commission subjected the attorney general to multiple due process violations before and during the hearing that taint the entirety of the proceedings against him,” his attorneys argue. “The commission prevented the attorney general from putting on a defense that directly related to the elements of the charges against him. These serious errors require, at a minimum, remand for a new hearing with a new panel.”
Throughout the document, Knudsen’s lawyers argue that the charges should be dismissed because the findings or procedure of the Office of Disciplinary Counsel or the Commission on Practice didn’t adequately prove the charges. Or, failing that, the case should be sent back — remanded — to a new commission to allow Knudsen to defend himself.
During the hearing, Knudsen tried to introduce at least one witness — an expert on attorney and court ethics — but was denied by the commission.
Knudsen also argues the finding that he used “intemperate, contemptuous and disrespectful language” when referring to the court is too vague to be enforceable. Knudsen’s attorneys say that while their client is an officer of the court and took an oath not to engage in personal attacks, they say that wording in the state’s rules of professional conduct is too subjective or ill-defined to be enforceable.
Instead, Knudsen’s attorneys say that his language, including his pledge not to obey court orders, were a matter of precisely following attorney rules and conduct, and legitimate, based on his “assertions concerning bias, impartiality and conflict-of-interest based on the fact that members of the court would be ruling on a case involving their own employee, and members of the court would be ruling on the disclosure of their own emails.”
Knudsen’s defense also argues that by not allowing certain evidence and expert testimony, it allowed a miscarriage of justice where the attorney general could not defend himself, thereby tilting the outcome.
“ODC’s charges force the attorney general to defend why he made certain statements. Yet the commission decided that evidence about why the attorney general made those statements is irrelevant,” the court briefing said. “In other words, by excluding this evidence, the commission created a one-sided world: ODC can accuse an attorney of making false or reckless statements, but that attorney cannot then introduce evidence to explain why he made those statements or to show that they were not false or reckless.”
Knudsen’s legal team also accuses the Office of Disciplinary Counsel and the Commission on Practice, which tried the case, of including so little detail and findings-of-fact that it cannot respond meaningfully to the allegations.
“The meager findings are so deficient that they deprive the attorney general of any meaningful ability to challenge them on review,” the brief said. “For practical purposes, the ‘findings’ are nonexistent, as neither the attorney general nor this court can reasonably determine from these conclusory statements how the attorney general supposedly violated the rules or what specific facts the commission relied on in reaching that decision.”
He’s Not Like Other Attorneys
Drawing on case law from higher education and employing the Montana Constitution, attorneys for Knudsen also argued that his role as the Montana Attorney General, a position elected statewide and mandated by the constitution, affords Knudsen a special role when it comes to law. They argue in their filing to the Supreme Court that Knudsen had the obligation to defend the Legislature and that no one else could have provided the vigorous defense.
To buttress their argument, the attorneys pointed out the Supreme Court has consistently allowed the Montana Board of Regents considerable autonomy in running the public higher education system. Furthermore, his attorneys liken the attorney general position to a judge, who is normally immune from disciplinary action when arriving at a decision.
“In other words, constitutional officers get deference in how they carry out their official duties,” the brief said. “Were these decisions subject to disciplinary review, these officers ‘would be as concerned with what is proper in the eyes of the commission as with what is justice in the cause.’”
The First Amendment
One of the categories Knudsen’s attorneys raise centers on the First Amendment of the Constitution of the United States, which guarantees free speech, and stresses protection for political speech. They claim that if the Montana Supreme Court were to uphold Knudsen’s punishment that it would violate his First Amendment Rights because the “expansive interpretations” made by the ODC were “constitutionally vague.”
“While it ‘may not have been pleasant’ for the court to receive that criticism, the exercise of constitutional rights and duties cannot yield to hurt feelings,” the filing said. “The uncontroverted evidence proves that the attorney general’s speech consists only of reasonable litigation statements of opinion, some of which are rhetorical hyperbole and some of which find objective factual support in the record.”
For example, Knudsen’s attorneys point to another rule he was found to have violated, Rule 8.4(d), which regulates “conduct prejudicial to the administration of justice.”
“Every attorney who reads the rule will be forced to guess at what conduct is ‘prejudicial to the administration of justice,’” the court filing said.
And it’s for that reason that Knudsen’s lawyers say that he shouldn’t be disciplined because the rules are so vague that an average person could not know what language is acceptable and what language or conduct is forbidden.
A Key Provision
One of the key elements of Knudsen’s defense is that both the disciplinary counsel and the Commission on Practice misinterpreted or misunderstood his actions, and the specific provisions of Rule 3.4(c) which says attorneys must obey all court orders except for orders where “no valid obligation exists.”
Knudsen maintains that the state’s Supreme Court had no right to stop the subpoenas issued by lawmakers. Even though that decision was ultimately overturned by the Montana Supreme Court and later, the U.S. Supreme Court refused to hear the case, attorneys for Knudsen argue that he was objecting to following an order he didn’t believe was valid.
Furthermore, attorneys for Knudsen said in court filings that the rules of conduct themselves prohibit the attorney general from covertly ignoring the order, so he was forced to make an open declaration that he would disobey the court because he didn’t believe it was proper.
“At a minimum, this rule requires an attorney to put a court on notice that the attorney will not comply with the court-imposed obligation,” his attorneys argue. “Rule 3.4(c) does not require that the attorney’s ‘assertion that no valid obligation’ be proven correct before the execution applies. Since challenges to the validity of a court’s authority often involve complex questions of jurisdiction or statutory authority, the assertion need only have ‘merit’ to receive the protection of Rule 3.4(c).”
Punishment, No Punishment Or New Hearing?
After raising more than 100 pages of defense for the embattled attorney general, attorneys for Knudsen say that the discipline meted out by the Commission on Practice — a 90-day suspension — is too severe, especially when compared to other cases.
The briefing chronicles some of the previous discipline doled out by the commission, including a case where an attorney defrauded a client and received a 30-day suspension by the commission, only to have the Supreme Court reduce it to a public admonition. In another, they point out that an attorney in 2017 had endangered children while driving drunk, and she received a public admonition.
“Unlike these cases, the attorney general is not alleged to have harmed clients, engaged in fraud or broken the law but — at bottom — is alleged to have acted ‘discourteously’ in representing the Legislature in a clash between coequal branches of government,” the attorneys said.
Knudsen’s attorneys argue that his punishment is too harsh and inconsistent with practice. Moreover, they contend that, because of the repeated procedural violations and his inability to present his defense, the case should be dismissed outright or the decision should be sent back for new factual findings and different members should be appointed. That could raise the possibility of the Supreme Court either modifying the punishment or repeating the hearing, which lasted two days earlier this year.
“If the court determines that the Attorney General violated one or more rules of professional conduct, it should take into account the highly unusual circumstances of this case,” Knudsen’s attorneys argue. “Suspending the sitting Attorney General from the practice of law for any period is an extreme and disproportionate sanction. It will not serve the ends of justice. It will not heal the fault lines in our political system. It will not increase public confidence in our institutions. It will, however, exacerbate the conflict between the branches of government.”
He doesn't have a leg to stand on.