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Montana AG says all counts in ethics complaint should be dismissed

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Montana AG says all counts in ethics complaint should be dismissed

Nov 28, 2023 | 5:19 pm ET
By Blair Miller
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Montana AG says all counts in ethics complaint should be dismissed
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Attorney General Austin Knudsen. (Provided by the Montana Attorney General's Office for the Daily Montanan.)

An attorney for Montana Attorney General Austin Knudsen filed the answer to a 41-count ethics complaint on Monday, saying the counts should all be dismissed – in part because Knudsen was “zealously” representing the views of his client, the Montana Legislature.

A special counsel for the Office of Disciplinary Counsel in September charged Knudsen with violating state rules of professional conduct and seeking to undermine confidence in the Montana Supreme Court during a 2021 fight with the court administrator and justices over both the constitutionality of a bill that changed how judicial vacancies were appointed and judicial email records — which eventually went up to the U.S. Supreme Court.

The complaint from Special Counsel Tim Strauch alleged Knudsen had tried to evade the high court’s authority, attacked its integrity and that of the justices on the court, and potentially led the public to question whether it should respect the court. The Attorney General’s Office in September called the allegations “meritless” and said they stemmed from a difference of opinion between the court, Knudsen, and the legislature.

Billings attorney Mark Parker, who has handled legal defense in similar cases in the past, was brought on to lead Knudsen’s defense and submitted the answer to the complaint Monday.

“The breathtaking 41 counts of alleged misconduct seek to discipline the Attorney General for, among other things, zealously representing his client—one of three co-equal branches of Montana’s tripartite government—in an unprecedented separation-of-powers case pressing what the Attorney General determined to be well-founded allegations of judicial misconduct,” Parker wrote in the response.

He provided three defenses for Knudsen – first, that the complaint fails to allege any violation of the Montana Rules of Professional Conduct; second, that if those rules apply to his conduct, they are unconstitutional because they are overly broad and vague in violation of the U.S. Constitution’s First Amendment; and third, if the rules apply in this case, they violate the Due Process Clause of the Fourteenth Amendment.

The response says that Knudsen failed to follow an order from the court quashing a subpoena from the Legislature and requiring him to return records because “no valid obligation existed” and the Legislature disagreed with the order. It says once the U.S. Supreme Court declined to hear the appeal, he complied with the order.

“Thus, his refusal to immediately comply with the April 11 Order was both ‘open’ and ‘based on an assertion that no valid obligation exists,’ making his actions permissible under Rule 3.4(c)’s plain terms,” the response says.

The response also asserts that letters Knudsen sent to the court on behalf of the Legislature opposing the April 11 and other subsequent orders did not constitute “knowing disobedience of an obligation,” and rather were expressions of the Legislature during litigation the Legislature was not party to.

It calls the complaint’s claim that Knudsen made undignified or disrespectful statements “inaccurate,” saying even if they could be construed as criticizing the court’s integrity, those statements should be allowed during a dispute over judicial conflicts of interest.

“Otherwise, motions to disqualify judges would always be barred by the MRPC,” the response says. “Any statement alleging a conflict of interest or other basis for judicial disqualification might be deemed ‘disrespectful’—especially by the members of the judiciary whose impartiality is called into question.”

The response also says that instead of violating the rules of professional conduct, Knudsen was upholding them despite “at times employing strong language” in advancing the Legislature’s position.

“Had the Attorney General refrained from aggressively asserting the Legislature’s position, he would have fallen short with respect to these other obligations,” Parker wrote in the response.

It says that Knudsen only made legitimate and factual statements concerning the integrity of the court that were “amply supported by undisputed facts and compelling legal arguments,” citing the court’s ruling on the Legislature’s subpoenas to the justices and court administrator, as well as Knudsen’s stance that the justices had personal interests in the outcome of those rulings.

The response says the only reason the ordeal started in the first place is because emails among justices discussing their opposition to Senate Bill 140 came to light, which constituted “evidence of judicial misconduct.”

It says that finding Knudsen violated one of the rules in this case would go against prior rulings by the Commission on Practice in which attorneys were sanctioned because they made unfounded accusations against the judiciary, and Knudsen’s were founded.

“If the Attorney General were disciplined here for what he determined to be well-founded allegations, it would be a stark departure indeed,” the response says. “And that departure would surely chill other attorneys from raising well-supported concerns about judicial misconduct in the future.”

The response also argues that none of Knudsen’s actions or statements about the court had any direct adverse effect on court proceedings because the proceedings continued as scheduled, and that Knudsen could not have violated that rule because though he did not immediately return records to the court administrator as ordered, he had asserted he had no valid obligation to return them.

But aside from those arguments, the affirmative defenses Knudsen’s lawyer raises rely primarily on arguments concerning rights under the U.S. Constitution to free speech and due process.

The response says that since Knudsen contends all his statements during the litigation about the court were true, they are protected by the First Amendment, and if the rules of professional conduct would prohibit such criticism of the court, it violates the Constitution.

It also contends that the rules do not provide attorneys fair notice of what type of conduct is prohibited and are overly vague if they “can be read to conflict with their plain meaning and to cover the Attorney General’s conduct,” which Parker says would be a violation of the Fourteenth Amendment.

Parker asked the full complaint be dismissed with prejudice so it could not be brought forth again.

Now that Knudsen has filed an answer in the case, the Commission on Practice will set a hearing to listen to arguments. After the hearing, an adjudicatory panel will compile findings of fact and conclusions of law and send a recommendation to the Supreme Court on what discipline, if any, should be handed down. The parties could object to those recommendations, which the Supreme Court would have to consider when making its decision.

The court could dismiss the counts against Knudsen entirely, but potential sanctions range from probation, public or private admonitions, public censure, suspension from practicing law, or disbarment.

A date for the hearing had not been set as of Tuesday afternoon.

PR 23-0496 Other -- Response_Objection