Lawyers deny politics involved in ethics complaint against Montana attorney general

By: - September 8, 2023 4:48 pm

Attorney General Austin Knudsen. (Provided by the Montana Attorney General’s Office for the Daily Montanan.)

The formal ethics complaint filed against Attorney General Austin Knudsen alleging he violated state rules of professional conduct is extraordinary in the number of allegations it contains, and because it has reached this stage in the process, attorneys with longtime involvement in such cases said this week – but they assured no political games were afoot.

The current chief disciplinary counsel for the Office of Disciplinary Counsel told the Daily Montanan that the Special Counsel Timothy Strauch, who filed the complaint earlier this week, was the lone person available in Montana to conduct the investigation and that he was vetted for political biases before being offered the job.

The formal complaint includes 41 counts alleging Knudsen and his deputies tried to undermine public confidence in the Montana Supreme Court and the state judiciary – particularly with their communications surrounding a lawsuit over separation of powers tied to a 2021 bill signed by the governor and a fight over subpoenaed records.

While the complaint is unique in that it includes charges against Montana’s top attorney, several lawyers with decades of experience in the attorney ethics field said Knudsen’s case has not been handled any differently than the hundreds of other grievances filed against Montana attorneys every year.

“It does not matter if you are a private attorney who never does anything other than simple wills and estates or divorces, or if you’re the top attorney in the state, the attorney general. We all have the same rules. We are all under the same regulations,” Strauch said in an interview this week.

In response to the complaint, an Attorney General’s Office spokesperson called the allegations “meritless” and called Strauch “a long-time Democrat activist and donor.” Montana Republican Party Chairman Don Kaltschmidt likewise called Strauch “a longtime Democrat donor and activist” and “an active supporter of the Montana Supreme Court.”

Strauch, a Missoula-based attorney who was the first chief disciplinary counsel for the Office of Disciplinary Counsel after its creation in late 2001, has been a lawyer since 1992 and focuses primarily on commercial and personal injury cases, but also works on professional discipline cases and is on the State Bar of Montana Ethics Committee.

He has donated $600 total to seven Democratic political campaigns in Montana since 2002 – most recently to Monica Tranel’s 2020 Public Service Commission campaign, according to Montana Commissioner of Political Practices records. They also show Strauch donated $5,290 to candidates in nonpartisan judicial races, most of them Supreme Court seats.

But his political donations played no role in his appointment as special counsel in the investigation or how he undertook the job, Strauch and current chief disciplinary counsel Pam Bucy said in interviews this week.

“It has virtually nothing to do with who the respondent is; it has to do with the misconduct,” Strauch said. “The other thing that needs to be borne in mind here is the system is not set up to punish any particular attorney. The entire purpose of the regulation of lawyers is to protect the public.”

During the past several years, the ODC has received generally between 200 and 300 new grievances a year, about half of which are typically found to have merit to warrant further investigation. But only a handful lead to formal complaints, according to Bucy and ODC annual reports.

In 2022, for instance, ODC filed only seven formal complaints, and the Supreme Court and commission on practice imposed 19 forms of discipline for eight lawyers, including costs, restitution, probation, private discipline and suspension.

Bucy compared the process to common regulations for other licensed professions.

“If you’re a plumber, you want to make sure every plumber is doing good work because it reflects badly on all plumbers, right?” she said.

Both Strauch and Mark Parker, a Billings attorney who has represented attorneys in dozens of cases, said it is rare for a grievance to get through the initial investigations to the formal complaint stage and for the attorney the complaint was filed against to face no discipline. Both also said that oftentimes the two sides come to an agreement on punishment akin to a plea bargain.

It’s rare for attorneys to be disbarred as punishment; according to Montana Supreme Court records, 65 Montana attorneys have been disbarred publicly in state history, while seven others who were disbarred were later reinstated.

Neither Strauch, Parker, Bucy, or Montana Trial Lawyers Association Executive Director Al Smith could recall a sitting attorney general in Montana facing a formal complaint, but attorneys general in other states have in recent years.

The Texas state bar filed a lawsuit requesting sanctions against AG Ken Paxton over his attempt to overturn the results of the 2020 election. The Kansas Supreme Court in 2013 suspended the former attorney general’s law license for violating the state rules of professional conduct.

Last year, a complaint was filed against Indiana’s attorney general, and a former Indiana AG had his law license temporarily suspended in 2022 after the state Supreme Court found he had groped four women at a bar.

Bucy is the lone attorney in the ODC, and the commission on practice is made up of 14 volunteers appointed by the Supreme Court – nine of whom are lawyers and five of whom are not. The members are divided into review and adjudicatory panels, and the commission meets quarterly.

Bucy said she recused herself and appointed Strauch to be special counsel in handling the complaint against Knudsen because she is the only attorney in the ODC and ran for attorney general as a Democrat in 2012, losing to Republican Tim Fox. But she said she received a few death threats after the complaint was filed this week.

“I want this to be, ironically, not political. So that’s why Tim was appointed,” she said. “And Tim was appointed because he is not a political person.”

Bucy said she had initially called one of her predecessors, Shaun Thompson, about taking the job but he let his law license lapse and retired. Strauch was her next choice because of his prior work as chief disciplinary counsel, she said.

Bucy said she did not know Strauch well but had consulted him on legal issues in the past. She said he told her he had donated to some Democratic friends in the past but assured her he was not political and only interested in the courts.

She said her only other option would have been to appoint a special counsel from outside of Montana, which she did not want to do because of the added costs. The ODC operates off assessments paid by practicing lawyers.

Strauch said while the system involving the ODC and commission on practice has been refined during the past 20 years, the ODC has been in place (the COP previously handled the entire process), he believes the process “works great.”

Bucy said the commission on practice hearing on the allegations against Knudsen likely would not take place until at least March, explaining that Knudsen will have opportunities to file responses like in a typical court case.

Parker endorsed the review system in an article published in the August-September issue of Montana Lawyer, saying it “works fine.”

“The Chief Justice has done a good job of picking competent prosecutors,” he wrote. “Although I disagree with them from time to time, I think they get it right in a large majority of the cases.”

He said in an interview this week that despite his experience in these cases, he has “no idea” how the case will turn out. He said he’s never seen anything like the complaint against Knudsen during his 40 years practicing law in Montana.

“The number of counts, the type of counts, sort of the high stakes involved with the two branches of government in what appears to be either a fist fight or a food fight, depending on how you look at it,” Parker said.

Smith said some MTLA members had wondered back in 2021 why complaints had not been filed over the filings and comments made by Knudsen.

“If we as attorneys said anything like that about a judge, we know we’d have been in front of the Commissioner on Practice in no time, so I can tell you that folks were wondering what’s going on,” he said.

Parker said he felt “disappointed that it came to this” but that he believes the process is being followed correctly. But he said he would not make any judgments in the case based solely on the allegations.

“I consider them all professional colleagues, and all are people of honor, so we’ll see what happens,” he said.

How the attorney grievance process works

Any person can file a misconduct grievance against an attorney in Montana with the ODC, and the source and allegations are kept confidential through most stages of the process. The office performs a preliminary review on each grievance and determines whether it has merit. Meritless grievances are typically dismissed, but complaints found to have merit are sent to the lawyer in question with a request for a response.

Once further investigation is done, the ODC can dismiss the grievance outright, dismiss it with a caution letter or corrective action for the lawyer, request leave from the Commission on Practice (COP) to pursue private discipline, or request leave from the COP to file a formal complaint.

Now that the formal complaint against Knudsen has been filed with the Montana Supreme Court, another panel of Commission on Practice members will host a hearing on the complaint at which Knudsen will be able to defend himself against the allegations.

After the hearing, the COP can either hand down discipline on its own or issue a findings-of-fact report and discipline recommendations to the Supreme Court, which would then make the ultimate decision on any discipline.

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Blair Miller
Blair Miller

Blair Miller is a reporter based in Helena who primarily covers government, climate and courts. He's been a journalist for more than 12 years, previously based in Denver, Albuquerque and mid-Missouri.