A senator on the Republican-led Senate Select Committee on Judicial Oversight and Reform last week asked for a bill to be drafted for the upcoming legislative session that seeks to exempt Montana’s attorney general from being subject to any discipline by the judicial branch while they are in office.
The request was made by Sen. Barry Usher, R-Yellowstone County, within a day of a Commission on Practice panel recommending Republican Attorney General Austin Knudsen have his law license suspended for 90 days because of violations of attorney conduct rules.
Knudsen’s office said he would appeal the recommendation, and the Montana Supreme Court will make the final decision on what punishment, if any, Knudsen should face. He could face anywhere from admonitions, censure, suspension, or disbarment under the rules.
The five-person Commission on Practice panel handed down its recommendation last Wednesday, Oct. 23. Committee records show Usher requested the bill be drafted the next day and that it was ready to be presented at Friday’s oversight committee hearing.
The committee – on which Democrats are not participating because they believe the committee was formed for Republicans to attack the judiciary branch – has already discussed most of the now 25 bills they have either considered or are having legislative staff draft ahead of the start of the 2025 session in January. The committee is likely to discuss the new proposal at its next meeting, although legislators asked questions about it at a meeting Friday.
The questions the committee members peppered Office of Disciplinary Counsel Chief Disciplinary Counsel Pam Bucy with to start Friday’s meeting, and some of the other proposals they have already come up with, showed some of the lawmakers and citizen members believe there could be political motivations behind the inquiry into Knudsen’s actions.
The Office of Disciplinary Counsel takes up grievances filed against attorneys in Montana over their conduct and ethics, investigates them, and either dismisses them, hands out private punishment, or presents the investigations to the Commission on Practice through a formal complaint, at which point the process becomes public.
But as Bucy noted during her presentation, the Office of Disciplinary Counsel was created under a provision of the Constitution that says the Montana Supreme Court makes rules governing the court system, admission to the State Bar of Montana, and governs the conduct of Montana attorneys.
The same provision says the Legislature may disapprove of rules of procedure within two legislative sessions of the rule changes, but it does not provide the Legislature further power over the courts.
Montana statute also outlines the attorney general’s “general duties,” which include prosecuting or defending cases in which the state is a party, executing judicial orders, supervising county attorneys, and deciding questions of law when they come from lawmakers or county or city officers.
Usher’s bill would add an exception to those duties, according to the bill draft, which seeks to override the court’s authority to govern attorney conduct only when it pertains to the attorney general.
“An attorney general is not subject to disciplinary actions, recommendations, or proceedings by the judicial branch, including but not limited to the office of disciplinary counsel, while in office,” the bill draft says.
It’s unclear whether the proposal would pass constitutional muster, as the Constitution provides the judiciary with the sole ability to regulate who can become an attorney in Montana, as well as all attorneys’ conduct.
For about three hours on Friday, Bucy outlined the attorney discipline process and how her office handles grievances, investigations and complaints and interacts with the Commission on Practice, which hears recommendations on attorney discipline from the Office of Disciplinary Counsel.
Many of the questions involved particularities about when investigations become public, why her office does not receive funding from the state government, and why the judiciary handles both attorney admission to the bar as well as the disciplinary process.
Some questions were particular to Knudsen’s case, including why the investigation that started based on grievances in 2021 took so long to reach this point, if the Commission on Practice ever rejects the Office of Disciplinary Counsel’s recommendation, and why the initial special counsel’s recommendation that Knudsen receive only a letter of admonition was public and other investigations that never lead to a formal complaint were not.
Bucy noted several times she had recused and appointed special counsels to investigate the grievances about Knudsen, so she didn’t have details of the “nuances” about why the case has been ongoing for more than three years. The initial grievances stem from Knudsen and his deputies’ conduct during a fight between the Legislature and Judiciary in 2021 in which Knudsen represented the Legislature.
She noted it had taken longer than normal, but other complicated cases have also taken several years to reach resolutions, she said.
She said the commission on two or three occasions during her time at the Office of Disciplinary Counsel had rejected the Office of Disciplinary Counsel’s recommendations.
And Bucy reminded the committee that the only reason the initial recommendation for a private admonition of Knudsen was public was because his lawyers had alluded to it and included it as an exhibit in a portion of the record that was public, following the filing of a formal complaint. Otherwise, all documents and communications made before a formal complaint is filed remain confidential.
Bucy told the committee that she hoped it was taking away from her presentation that her office and its investigation of Knudsen is not politically motivated. As committee members pressed her for her thoughts on the investigation and commission’s recommendation, she pointed out that there are still several steps in the process before Knudsen, who is up for re-election next week, faces any possible punishment.
“I think people feel very strongly about how a lawyer should behave, and I do. I just hope that you all will allow the process to work. There’s still a lot of process left, and you know, just like a court, you don’t have to agree, and the attorney general doesn’t have to agree,” Bucy said. “… I hope that we can all just see how it works and it will confirm for you all that this process is fair, because I assure you that’s certainly my goal.”
Before dismissing Bucy for the day, Usher thanked her for attending the meeting at his request. Committee chairperson and Senate President Jason Ellsworth, R-Hamilton, said the committee had invited her “well before” Knudsen’s recommended punishment came down last week, which he said “garnered some strong questions.”
He said looking at the circumstances surrounding Knudsen’s case, and how the Office of Disciplinary Counsel, Commission on Practice, and Supreme Court are involved, there should be a “uniting question” of how to better define the process “for the greater good of the public.”
Alongside Usher’s newest request to exempt the attorney general from discipline, there is a bill seeking to put a constitutional amendment question to voters seeking to stop requiring attorneys to be members of the State Bar. The attorney general must be an attorney in good standing under the state Constitution.
Other draft bills in progress, or which have already been drafted and approved by the committee, include bills to give more power of review to the legislature when reviewing ballot initiatives; one giving legislative leadership power to vacate writs of mandamus; one that would have the courts give deference to any legislative acts; making judicial elections partisan; auditing the State Bar and Office of Disciplinary Counsel; and making changes to the Judicial Standards Commission, which oversees conduct for judges in the state.
Nearly all the bills the committee is moving forward or has considered are direct responses to matters involving the court or decisions the courts have made that largely went against Republican lawmakers’ favor during the past three years.
The committee will continue its bill drafting process at its next meeting, tentatively scheduled for Nov. 14. Several members said during Friday’s meeting they are pleased with the work done so far, the process, and the bills they are drafting. Usher did not return phone messages Monday.
“There are no bills that are more important than the ones coming out of this committee,” Usher said.
