HELENA - A quick back-and-forth between Sen. Barry Usher and Rep. Tom France addressed the elephant in the room with a bill that would prohibit disciplinary proceedings against constitutional officers who are lawyers, albeit with exceptions.
In 2023, Attorney General Austin Knudsen was accused of 41 counts of professional misconduct — charges his lawyer has argued should be dismissed.
The case and any discipline are pending with the Montana Supreme Court, but this session, Sen. Usher, R-Billings, sponsored Senate Bill 49 to protect constitutional officers who are attorneys from discipline while in office.
Those officers include the attorney general, and also the governor, lieutenant governor, secretary of state, superintendent of public instruction, and auditor, and the law would apply to legislators too, reports the Daily Montanan.
The bill got out of the Senate on a 29-21 vote on third reading, and it prompted a heated debate in the House Judiciary Committee this week.
In a hearing Monday, Usher said it offers immunity to legislators or constitutional officers who are attorneys and speaking in the course of their work as elected officials.
“It’s a free speech issue,” Usher said.
No proponents testified for the bill.
Rep. France, D-Missoula, said he understood many of Usher’s arguments, but also said the AG’s role is a bit different than the role of the other constitutional officers.
He said the AG serves in a dual capacity, as a constitutional officer, but also as an officer of the court.
“It seems to me that the Attorney General, of all of our elected officers, has a high duty to respect the court and very carefully follow the rules of professional conduct,” France said.
As such, France asked if Usher would accept an amendment that would exclude the AG from immunity. Usher, however said he would not consider that a friendly amendment.
France then brought up a different idea.
He said the AG made some comments France, as an attorney, thought “pushed the limits of what was acceptable” and ones he considered “an attack on the court’s integrity.”
The Commission on Practice, which hears claims against attorneys, held a hearing in fall 2024 and recommended a 90-day suspension of Knudsen’s law license; a final decision is pending and a hearing is scheduled on Friday.
France asked if Usher would accept an amendment to push the effective date of the bill “so that we don’t look like we’re giving him a get-out-of-jail-free card.”
Currently, the effective date is upon passage and approval, and it applies retroactively to any disciplinary proceeding occurring on or after Jan. 1, 2024.
Usher said he would accept that amendment as friendly, but he’s heard the allegation before.
“I have been accused that this is why this bill is coming forward, but that would be a friendly amendment,” Usher said.
He also said he believes the case against Knudsen will conclude before the bill gets to the governor’s desk.
The bill was part of a suite of legislation that came out of the Senate Special Committee on Judicial Oversight and Reform, a priority this session for Republicans, who have clashed with the courts.
Originally, the bill was requested to exempt only the attorney general from disciplinary measures, according to a summary of bill draft requests from the committee.
A subsequent list of draft bill requests broadened the scope to all constitutional officers and legislators.
The committee didn’t take immediate action on the bill Monday, and a draft amendment wasn’t posted Tuesday.
At the hearing, Rep. Alanah Griffith, D-Big Sky, a lawyer, said professional rules require her to be truthful and honest, including to the legislature.
Griffith said she feared the bill would give constitutional officers a pass on ethics when they present bills.
“Do you think that’s a good idea?” Griffith said.
Usher said you don’t have to be an attorney to uphold ethics, and the bill doesn’t intend to be a license to “lie, cheat and steal.”
“I’m very offended by that, and I’m offended that you brought it up again,” Usher said.
He also said all elected officials are held accountable at the ballot box.
Rep. Zooey Zephyr, D-Missoula, said she had similar concerns as Griffith.
Zephyr said as she read it, the bill would create a situation where the AG could “lie through his teeth” about financial needs in his office.
Usher said he’d like to be able to prosecute someone who lies to the legislature, but he hasn’t found support for that idea in the past.
Plus, he said, lots of people can misrepresent information to lawmakers.
“So could any of the witnesses you had today that aren’t attorneys,” Usher said.
Zephyr said she was concerned the bill was a step backwards if the concern was about being truthful, but Usher said it didn’t make sense to have different standards.
Say a person is an attorney and is elected as superintendent of public instruction, he said.
“Why is that person held at a different standard than the last OPI superintendent that was not an attorney?” Usher said.
Rep. Tracy Sharp, R-Polson, said there’s no question a “tremendous battle” is taking place in this country involving the legislature and the judiciary. He asked Usher if one aim of the bill was for a lawyer elected into one of those roles to be able to speak freely of the judiciary.
“You’re trying to allow that elected official to speak openly and critically of that body, absent punishment,” Sharp said. “Is that what this bill is trying to do?”
Usher said that’s one example. He said currently, the governor is allowed, say, in his state-of-the-state address, to criticize the judiciary, and the governor shouldn’t lose that ability if he’s a member of the bar.
Bruce Spencer, with the State Bar of Montana, said he doesn’t believe the law would pass constitutional muster because the Montana Constitution states that the state Supreme Court regulates the practice of law.
Spencer also said his organization feels that lawyers should be ethical 100% of the time, and he doesn’t think it’s good policy to say lawyers get a pass if they’re elected.
He said the State Bar believes that lawyers represent a special trusted place in our society, and their great power requires them being held to higher standards.
“I can empty your bank account if I get a judgment,” Spencer said. “I can sell your house. I can, as a prosecuting attorney, put you away for life or the death penalty. And so the State Bar feels that lawyers should be held to a higher standard simply because we’ve been granted that privilege, that license to practice law.”
