Montana Attorney General Subject to Bar Discipline, but Criticism of Courts Requires Proof of Falsity; Rule 8.4(d) Requires Prejudice to an Identifiable Proceeding; Due-Process Defects Can Compel Dismissal

Introduction

Matter of Austin Miles Knudsen (2025 MT 304) is an attorney-discipline decision arising from a high-profile separation-of-powers conflict between Montana’s Judiciary and the political branches. The respondent, Austin Knudsen, the elected Montana Attorney General, was charged by the Office of Disciplinary Counsel (ODC) with 41 counts of misconduct tied to his representation of the Montana State Legislature (and related executive interests) in litigation stemming from legislative subpoenas seeking Judicial Branch emails.

The core factual backdrop comes from two interrelated matters: Brown v. Gianforte, 2021 MT 149 (SB 140 judicial vacancy process) and McLaughlin v. Mont. State Legislature, 2021 MT 178, which ultimately quashed legislative subpoenas for Court Administrator Beth McLaughlin’s emails and ordered immediate return of materials produced under those subpoenas. The disciplinary case focused on (1) compliance with court orders, (2) supervisory responsibility for subordinate attorneys, and (3) whether sharp public and litigation statements criticizing the Montana Supreme Court and its Justices crossed professional-conduct lines.

Key issues included:

Whether disciplining the Attorney General for litigation conduct violates separation of powers;
What constitutes “open refusal” under Rule 3.4(c) when challenging an order (especially while seeking U.S. Supreme Court review);
Whether speech criticizing judges violates Rule 8.2(a) absent proof of falsity;
Whether Rule 8.4(d) requires a nexus to prejudice in a specific proceeding;
Whether “stacking” violations under Rules 8.4(a) and 8.4(d) is permissible;
What due process the Commission on Practice must provide, and what remedies follow from failures.

Summary of the Opinion

The Court affirmed in part and reversed in part the Commission on Practice’s findings. Substantively, it held:

Separation of powers does not exempt the Montana Attorney General from discipline: he is subject to the Montana Rules of Professional Conduct because the Montana Constitution requires the Attorney General to be “an attorney in good standing” (Mont. Const. art. VI, § 3(2)) and grants the Supreme Court jurisdiction over “the conduct of its members” (Mont. Const. art. VII, § 2(3)).
Knudsen violated Rule 3.4(c) by failing to comply with the Court’s July 14, 2021 order to “immediately return” subpoena materials while petitioning for certiorari—because he did not seek a stay and his noncompliance was effectively “secret, unannounced disobedience.”
Knudsen violated Rule 5.1(c) by failing to ensure subordinates complied with the return order and by not taking remedial steps when aware of their ongoing noncompliance.
ODC failed to prove violations of Rule 8.2(a) (statements about judges) because it did not establish that the statements were false (or made with reckless disregard of truth), and many were factual assertions not proven false or were protected opinions/hyperbole.
Knudsen did not violate Rule 8.4(d) because the Commission failed to show a nexus to adverse effect on a specific proceeding; the Court expressly held prejudice to an identifiable proceeding is an element of Rule 8.4(d).
Knudsen did not violate Rule 8.4(a) on a duplicative theory; Rule 8.4(a) cannot be used as an “echo” violation for the same conduct already charged under other rules.

Procedurally, the Court found multiple due-process violations by the Commission—including a solo ruling on summary judgment without a quorum, exclusion of Knudsen’s expert without allowing response time, and (most significantly) inadequate conclusions of law that prevented meaningful appellate understanding and deprived Knudsen of fair notice for objections. As a result, despite identifying Rule 3.4(c) and 5.1(c) violations, the Court dismissed the case without further action, denied costs, and treated the opinion itself as a public admonition.

Analysis

Precedents Cited

1) Constitutional role of courts in regulating attorneys

Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821): quoted for the judiciary’s duty to decide cases and not avoid constitutional questions. The Court used this to justify addressing both attorney discipline and separation-of-powers ramifications rather than sidestepping them.
Ex parte Garland, 71 U.S (4 Wall.) 333 (1867) and Ex parte Secombe, 60 U.S. (19 How.) 9 (1856): foundational statements that attorneys are “officers of the court” and that regulation is a judicial function bounded by due process and “sound and just judicial discretion.” These cases supported Montana’s inherent/constitutional authority to regulate lawyers while emphasizing non-arbitrariness.
Goetz v. Harrison, 153 Mont. 403, 457 P.2d 911 (1969) and In re Best, 2010 MT 59: cited for Montana’s doctrine that admission and regulation of attorneys lies within the Supreme Court’s authority, subject to constitutional guarantees (including due process).
In re President of Mont. Bar Ass'n, 163 Mont. 523, 518 P.2d 32 (1974): used to situate Montana’s unified-bar framework within the Court’s regulatory power.

2) Separation of powers and disciplining an elected attorney general

Webster v. Comm'n for Law. Discipline, 704 S.W.3d 478 (Tex. 2024) and Paxton v. Comm'n for Law. Discipline, 704 S.W.3d 584 (Tex. App. 2024) (and the later note about Paxton v. Comm'n for Law. Discipline, 707 S.W.3d 115 (Tex. 2025)): invoked by Knudsen for the proposition that only the court receiving the pleadings may police an attorney general’s pleadings. The Montana Court found these warnings “persuasive but not directly on point,” and declined to adopt Texas’s rule given Montana’s constitutional text requiring the Attorney General to be an “attorney in good standing” and placing attorney conduct under Supreme Court jurisdiction.
State Bar v. Gomez, 891 S.W.2d 243 (Tex. 1994): used to distinguish Texas’s regulatory source (statute/inherent power) from Montana’s express constitutional allocation.

3) Compliance with orders: Rule 3.4(c) “open refusal”

In re Ford, 128 P.3d 178 (Alaska 2006): stood for the principle that an attorney may challenge an order via legal means but may not disregard it; it informed the Court’s analysis of what counts as an “open refusal.”
Att'y. Griev. Comm'n of Md. v. Levin, 69 A.3d 451 (Md. 2013): provided examples of proper procedural routes to contest obligations (motions, contests) rather than noncompliance.
Gilbert v. Utah State Bar, 2016 UT 32, 379 P.3d 1247 (Utah 2016): emphasized the communicative function of “open refusal”—allowing the tribunal and opposing counsel to respond. Montana distinguished Gilbert’s “ignore[d the] court order” posture from Knudsen’s rehearing phase, but relied on Gilbert in holding silence and prolonged noncompliance during certiorari (without a stay) was not “open refusal.”
People v. Brown, 461 P.3d 683 (Colo. Off. Pres. Disc. Judge 2019): reinforced that open refusal requires good-faith, transparent noncompliance to test validity—not “surreptitious” flouting.
Federal and other authorities underscoring obedience pending review: Chapman v. Pac. Tel. & Tel. Co., 613 F.2d 193 (9th Cir. 1979) and Fla. Bar v. Wishart, 543 So. 2d 1250 (Fla. 1989).

4) Lawyer speech about judges: Rule 8.2(a), falsity, and opinion

Standing Comm. on Discipline v. Yagman, 55 F.3d 1430 (9th Cir. 1995): treated as the “lodestar.” Montana imported Yagman’s framework: discipline requires false statements (or opinions implying false facts) made with knowledge or reckless disregard; fully disclosed factual bases tend to render opinions constitutionally protected.
United States District Court v. Sandlin, 12 F.3d 861 (9th Cir. 1993) and New York Times Co. v. Sullivan, 376 U.S. 254 (1964): supplied the objective “reasonable attorney” standard and the constitutional “actual malice” constraint analogized into Rule 8.2(a) enforcement.
Montana’s defamation/opinion parallels: Hale v. City of Billings, 1999 MT 213 and Goguen v. NYP Holdings, Inc., 2024 MT 47: used to reinforce that opinion based on stated facts is generally protected unless the stated facts are false.
The Court also relied on authorities preserving room for harsh criticism: In re Sawyer, 360 U.S. 622 (1959), and for sanctionable lines: Dunlap v. Bd. of Prof. Resp. of Sup. Ct. of Tenn., 595 S.W.3d 593 (Tenn. 2020).

5) Rule 8.4(d) and the “nexus” requirement

In re Olson, 2009 MT 455: controlling Montana precedent requiring “some nexus” between conduct and “an adverse effect upon the administration of justice.” The Court read Olson as tethering Rule 8.4(d) to harm in a specific proceeding and explicitly rejected broader approaches.
People v. Jaramillo, 35 P.3d 723 (Colo. Off. Pres. Disc. Judge 2001): cited via Olson; its examples involved direct disruption/delay in specific proceedings, supporting Montana’s narrowed element.
The Court rejected the broad view exemplified by In re Kline, 311 P.3d 321 (Kan. 2013), declining to allow Rule 8.4(d) to reach generalized “harm to the system” untethered to a particular proceeding.

6) Anti-“stacking”: duplicative charging under general rules

In re Discipline of Two Att'ys, 660 N.E.2d 1093 (Mass. 1996): supported the principle that specific rules should be used instead of expansive general provisions when possible.
Rule 8.4(a) “echo” concerns: In re Sharp, 802 So. 2d 588 (La. 2001), Att'y Grievance Comm'n of Md. v. Yates, 225 A.3d 1 (Md. 2020), Iowa Sup. Ct. Att'y Disciplinary Bd. v. Templeton, 784 N.W.2d 761 (Iowa 2010), Johnson v. Off. of Prof. Conduct, Utah State Bar, 2014 UT 57, Carey v. Bd. of Overseers of the Bar, 2018 ME 119. Montana adopted the view that Rule 8.4(a) should not be treated as an automatic additional violation for every other violation.
The Court noted contemporary reinforcement: Disciplinary Couns. v. Grendell, 2025 Ohio 5239 (discouraging “piling on” general rule violations).

7) Due process in attorney discipline

In re Engel, 2008 MT 215, In re Doud, 2024 MT 29, In re Best, 2010 MT 59, In re Wyse, 212 Mont. 339, 688 P.2d 758 (1984), and Goldstein v. Comm'n on Prac. of the Sup. Ct., 2000 MT 8: provided baseline requirements of notice, opportunity to be heard, and impartial tribunal; and framed the “orderly method” of preserving defenses.
Remedy/notice principles: Fennessy v. Dorington, 2001 MT 204 and Armstrong v. Manzo, 380 U.S. 545 (1965): used to reject the idea that a later “motion to reconsider” necessarily cures an earlier deprivation of the chance to respond, due to real burden shifting.

Legal Reasoning

1) A constitutional “two-truths” holding: the Attorney General is regulable, but regulation must respect political-branch prerogatives

The Court rejected an absolute immunity theory: Montana’s Constitution requires the Attorney General to be an attorney “in good standing” and vests the Supreme Court with authority over “the conduct of its members.” That textual pairing compelled the threshold holding that the Attorney General may be disciplined as a lawyer.

At the same time, the Court warned against converting lawyer regulation into judicial control of executive/legislative discretion. The “line” is drawn by enforcing professional norms without policing the political branches’ legitimate, even controversial, litigation positions and rhetorical strategies—except where the rules plainly apply (e.g., disobeying a court order).

2) Rule 3.4(c): rehearing can qualify as open refusal, but certiorari without a stay does not

The Court parsed Rule 3.4(c)’s exception (“open refusal based on an assertion that no valid obligation exists”) with unusual procedural specificity. It distinguished two phases:

Petition for rehearing: deemed “other appropriate relief,” sufficiently open and tied to the order’s continued validity. The Court declined to impose a rigid requirement that a stay must always be sought during active, transparent rehearing proceedings.
Petition for certiorari: the Court treated the timeline and norms of U.S. Supreme Court review (including 28 U.S.C. § 2101(f) and Supreme Court Rule 23) as making a stay functionally essential. A party may seek review, but absent a stay, the underlying judgment remains enforceable. Months-long retention of subpoena materials without a stay was “secret, unannounced disobedience,” and therefore not protected as “open refusal.”

3) Rule 5.1(c): supervisory liability is real, but bounded by knowledge and remedial opportunity

The Court emphasized “guardrails” built into supervisory responsibility: ODC must prove ordering, ratification/ignoring with knowledge, or failure to take remedial action when consequences could be avoided or mitigated. Applying that standard, Knudsen’s awareness of continued noncompliance and lack of remedial steps supported a separate Rule 5.1(c) violation.

4) Rule 8.2(a): the Court required falsity findings, not merely tone policing

The Court rejected a recurring prosecutorial pattern it identified: questions about “disrespectful,” “intemperate,” or “undignified” statements did not prove Rule 8.2(a)’s essential elements. The Court insisted on Yagman’s structure: whether statements are provably false (or imply undisclosed false facts) and, if so, whether made knowingly or with reckless disregard—judged by a reasonable attorney standard. Because the Commission did not find falsity (and ODC did not prove it), the Rule 8.2(a) conclusions could not stand.

5) Rule 8.4(d): the Court formally narrowed the rule

The Court made a major doctrinal move: it held that prejudice to an identifiable proceeding is an element of Rule 8.4(d). This rejects interpretations that allow discipline for diffuse, generalized “harm to the justice system.” The Court reasoned the rule’s breadth otherwise invites vagueness problems and risks becoming an all-purpose add-on.

6) Anti-stacking: Rules 8.4(d) and 8.4(a) cannot be used as multipliers to avoid constitutional limits or inflate counts

The Court treated ODC’s strategy as constitutionally and structurally problematic:

Using Rule 8.4(d) to punish the same speech charged under Rule 8.2(a) would allow discipline without proving falsity or reckless disregard—contrary to First Amendment constraints (Yagman and New York Times).
Using Rule 8.4(a) as an automatic “extra violation” for any other violation would create duplicative “echo” findings that do not advance the disciplinary process.

7) Due process: the Court converted procedural defects into a dispositive remedy

Even after finding two rule violations, the Court dismissed the case because:

A summary-judgment denial was issued by the chair alone, contrary to quorum requirements (MRLDE 4C), where the motion raised a threshold separation-of-powers/jurisdictional challenge;
The Commission granted ODC’s motion in limine excluding Knudsen’s expert without allowing a response, and the later reconsideration did not cure the deprivation because it shifted burdens;
Most critically, the Commission’s conclusions of law were effectively non-existent—listing rule numbers without explaining legal standards or applying facts—rendering meaningful review and fair notice for objections impossible.

The Court refused to remand for corrected findings, citing prudence and the proceeding’s public/political cost, and instead ended the matter by dismissal while issuing a public admonition through the opinion itself.

Impact

1) Attorney General discipline: jurisdiction confirmed, but constitutional sensitivity required

The decision settles a first-impression Montana question: the Attorney General is regulable as a lawyer, even for conduct in office. But the Court simultaneously signaled that discipline cannot become a proxy for inter-branch struggle or a tool to penalize controversial advocacy positions.

2) Rule 3.4(c) compliance doctrine sharpened for appellate/SCOTUS practice

A concrete compliance rule emerges: when seeking U.S. Supreme Court certiorari from a Montana Supreme Court order requiring affirmative action (like return of materials), an attorney must ordinarily seek a stay; otherwise, continued noncompliance risks discipline even if certiorari is pending.

3) Rule 8.2(a) enforcement becomes more evidence-driven

The Court raised the bar for prosecuting lawyer criticism of judges: disciplinary bodies must make and explain falsity findings, not rely on offense, tone, or the tribunal’s disagreement with rhetoric.

4) Rule 8.4(d) is narrowed; “general harm to the system” is not enough

By requiring prejudice to an identifiable proceeding, Montana constrains Rule 8.4(d) and reduces its availability as a catch-all count. This will likely shift ODC charging strategy toward specific rules (e.g., Rule 3.4(c), Rule 4.4, Rule 3.3, etc.) and toward evidentiary showings tied to concrete procedural disruption.

5) Anti-stacking doctrine will reduce charge inflation

The Court’s rejection of “echo” violations under Rules 8.4(a) and 8.4(d) discourages multiplying counts for the same conduct. Expect fewer duplicative rule counts and more careful element-by-element pleading and proof.

6) Commission procedure: clearer due-process guardrails and appellate-proof orders

The decision underscores that disciplinary tribunals must:

Follow quorum requirements for panel “acts,” especially threshold merits/jurisdiction motions;
Provide response opportunities on significant motions in limine;
Issue conclusions of law that actually apply legal standards to facts, enabling meaningful review and fair objection practice.

The remedy—dismissal despite proven violations—also signals that procedural breakdowns can defeat discipline outcomes in Montana.

Complex Concepts Simplified

“Open refusal” (Rule 3.4(c)): A lawyer may refuse to comply with a tribunal obligation only if the refusal is transparent and tied to a legal challenge that asserts the obligation is invalid. The point is to let the court and opposing parties respond. Quiet, prolonged noncompliance—especially without seeking a stay during lengthy certiorari timelines—falls outside the exception.
Stay: A stay is an order that temporarily pauses enforcement of another order while review is pursued. Without a stay, the original order remains binding even if rehearing or certiorari is pending.
Certiorari: A discretionary U.S. Supreme Court review process. Because it is discretionary and can take months, courts often require parties to seek a stay if compliance would otherwise be required during the pendency.
Rule 8.2(a) “falsity” requirement: Lawyers can criticize judges, even harshly, but discipline requires proof that the lawyer made statements that were false (or implied undisclosed false facts) and did so knowingly or recklessly.
Rule 8.4(d) “nexus” / identifiable proceeding: Montana now requires proof that the conduct adversely affected the administration of justice in a particular, identifiable case—not merely that it harmed public confidence in the system in a generalized way.
De novo review in discipline: The Supreme Court reviews the Commission’s work anew, but it still requires the Commission to produce a record and reasoned conclusions; de novo review is not meant to substitute for missing legal analysis.

Conclusion

Matter of Austin Miles Knudsen establishes multiple consequential rules for Montana attorney discipline: (1) the Attorney General is subject to professional regulation consistent with Montana’s constitutional structure; (2) compliance with Supreme Court orders during certiorari requires seeking a stay to avoid Rule 3.4(c) exposure; (3) Rule 8.2(a) discipline for criticism of judges demands proof of falsity (and not mere offensiveness); (4) Rule 8.4(d) is narrowed to require prejudice to an identifiable proceeding; and (5) duplicative “stacking” under Rules 8.4(a) and 8.4(d) is disfavored.

Equally important, the decision is a procedural warning: disciplinary outcomes may fail—even where misconduct is found—if the Commission does not observe quorum rules, briefing fairness, and adequate legal reasoning in its orders. The Court’s ultimate dismissal, paired with a public admonition through the opinion itself, leaves Montana with a strengthened doctrinal map but an unmistakable institutional lesson: attorney-discipline legitimacy depends as much on disciplined procedure as on disciplined advocacy.