The Montana Supreme Court heard oral argument in ODC PR23-0496, a disciplinary proceeding arising from statements and litigation conduct by Attorney General Austin Miles Knudson. Counsel for Knudson urged dismissal on procedural and separation-of-powers grounds, while the Office of Disciplinary Counsel (ODC) told the court it had met the clear-and-convincing standard required to discipline the state's highest law officer for violations of the rules of professional conduct.

Knudson's counsel argued the Commission on Practice tainted the process by overruling an initial special prosecutor's recommendation and effectively directing ODC to file a formal complaint. "This entire process from investigation to complaint to hearing has been tainted by persistent due process violations," counsel told the court, arguing that the commission denied the attorney general a fair opportunity to present evidence about the objective reasonableness of his statements. Counsel also framed the constitutional question as one of separation of powers and urged the court to dismiss rather than allow what he described as "a third bite at the apple." (Respondent counsel identified in the record as Richard Cory, Solicitor General, and co-counsel on the briefing.)

ODC's special counsel told the justices that the record shows Knudson made disparaging remarks about the integrity and qualifications of the court and disobeyed a July 14 order in the McLaughlin litigation. "No lawyer is above this court's constitutional regulatory authority," ODC's counsel said, urging the court to adopt the Commission on Practice's recommendation. ODC also emphasized public confidence in the judiciary as a central justification for discipline.

Why it matters: the case raises whether and how the court can regulate an elected attorney general's litigation conduct when the conduct arises from a dispute among coequal branches of government. Counsel for Knudson urged that disciplining the attorney general here would raise separation-of-powers problems, particularly because the dispute involved the legislature and judicial subpoenas and because an earlier special prosecutor had recommended a private admonition. ODC countered that the court has "exclusive" authority to regulate lawyers and that the rules apply equally to the attorney general.

Key factual and procedural points in the argument included: the matter is captioned ODC PR23-0496 (the record label in the proceeding); the formal complaint in the record was filed Oct. 23 (date shown in the record); the formal hearing occurred in October 2024 (three weeks before the general election, as referenced in argument); and the Commission on Practice issued findings and a recommendation after that hearing. Counsel and the court debated whether the commission's findings were sufficiently specific and whether the commission erred by excluding lines of evidence and expert testimony proffered by the defense (notably expert Thomas R. Lee).

Legal issues pressed by both sides included: whether the commission improperly instructed ODC to file a formal complaint in violation of the court's prior precedent (citing In re Best and Texas decisions Webster and Paxton during argument), whether Knudson's statements fall within the "open refusal" exception in rule 3.4(c) of the disciplinary rules, whether statements alleged to attack judicial integrity are verifiably false and made without an objectively reasonable basis (the two-step analysis under rule 8.2(a) discussed by counsel), and whether procedural defects (alleged quorum problems, exclusion of evidence, and the brevity of the commission's written findings) require dismissal or remand for further proceedings.

Several justices pressed both sides on narrow points of procedure and remedy. The court asked whether an attorney asserting an "open refusal" must file a motion for stay or whether notice by appeal and rehearing can suffice; the Chief Justice observed that "when you agree that you have to put something in front of a court ... they file a motion, they file a petition, they ask for writ. They don't send a letter." The defense replied that at the time the law was unsettled and that Knudson's petition for rehearing and later certiorari petitions put the court and opposing counsel on notice of the refusal.

Both sides proposed different remedies if the court finds error. Knudson's counsel urged dismissal or at least remand for a new hearing, arguing that allowing ODC to refile or to reopen factfinding would give the commission an unfair "third bite." ODC asked the court to adopt the commission's recommendation and emphasized that the court may issue de novo review of the record, accept or reject the commission's findings, and impose discipline up to the sanction the commission recommended.

What the court did not do at argument: the justices did not announce a decision at the close of oral argument. The proceedings were submitted to the court for decision. The record shows multiple contested questions remain, including the sufficiency of the commission's written findings and the proper interpretation of disciplinary rule 3.4(c) in the coequal-branches context.

For readers: the dispute implicates the Montana Supreme Court's authority to oversee lawyer conduct, the scope of constitutional separation-of-powers protections for an elected attorney general acting as counsel for a coequal branch, and the procedures by which disciplinary complaints may be initiated and prosecuted. The court indicated interest in providing prospective guidance about how an attorney should assert an open refusal going forward but reserved its final ruling.

The matter was submitted to the court at the conclusion of oral argument; no decision was announced from the bench.