Texas Two-Steps Away from Government Lawyer Accountability, Montana Does not Follow

Two states recently considered whether separation of powers prevents lawyer disciplinary authorities from pursuing certain grievances against state attorneys general or high-level lawyers in their offices. Texas made it harder to hold those lawyers accountable, while Montana declined to follow.

The Texas two-step began after the 2020 presidential election. Texas Attorney General Ken Paxton and First Assistant Brent Webster petitioned the U.S. Supreme Court for permission for Texas to file a case challenging the administration of the election in four other states. Seventeen Republican state attorneys general filed an amicus brief supporting the petition. The Court quickly rejected Texas’s effort, which many observers viewed as a frivolous.

The Texas Commission for Lawyer Discipline received more than 80 grievances against Paxton and Webster, including from out-of-state individuals and organizations. It received another 10 grievances against Texas attorney Sidney Powell for her involvement in lawsuits seeking to overturn the election. The Texas legislature responded in 2023 by enacting a statute that drastically limited who could file actionable disciplinary grievances.

By that time, the commission had already petitioned a state trial court to discipline Webster based on a grievance that pre-dated the statute. The commission alleged that he had violated a Texas disciplinary rule by making misrepresentations to the U.S. Supreme Court in Texas’s filings challenging the presidential election results. When the case reached the Texas Supreme Court, 18 Republican state attorneys general filed an amicus brief in support of Webster’s separation-of-powers argument.

In Webster v. Commission for Lawyer Discipline, the Texas Supreme Court dismissed the case in a 7–2 decision. Citing separation-of-powers concerns, it effectively stripped the commission of authority to pursue certain grievances against executive branch lawyers.

To reach this result, the court found that the Texas Constitution endowed the attorney general and the first assistant with the authority to file petitions in court and to assess the propriety of the representations in the petitions. The court declared that these assessments “are privileged at a constitutional level from collateral review by the other branches.” At the same time, the court reasoned that Texas courts have the inherent power to discipline attorneys. The authority of the court hearing a case “includes holding even the attorney general (and any other executive-branch lawyer) to account for litigation conduct.”

The court was very clearly unhappy that the commission had brought the case to it, especially because the matter was based on a grievance by an out-of-state lawyer.

It therefore declared that the commission’s petition constituted a “collateral attack” that would invade the executive branch’s prerogatives. “Collaterally” disciplining the first assistant for statements in initial pleadings seriously risks dragging the judicial branch into political disputes, the court said. Thus, in this “narrow circumstance,” the court held that separation of powers requires that violations based on representations in initial pleadings could only be addressed by the court to whom the pleadings are presented and not the commission, unless the judge refers the matter there. 

The dissenting justices viewed the majority’s “freshly minted direct/collateral distinction” as unprecedented and illogical. They observed that no court “has ever held that the separation of powers prohibits the judicial branch from regulating the practice of law by one lawful means when it permits the branch to have the same effect by another.” If the court was dissatisfied with the processes it created, they added, “we should change it, not declare portions constitutionally inapplicable, case-by-case, based on principles we make up as we go along.”

After Webster was decided, the court dismissed a pending disciplinary case against Paxton, which was nearly identical to the commission’s case against Webster.

The Montana Supreme Court recently declined to follow Texas’s lead. The Montana case also arose out of an intense political dispute that pitted the state legislature and governor, represented by Attorney General Austin Knudsen, against judicial branch actors. During litigation, Knudsen made disparaging statements about the Montana Supreme Court. He also waited eight months to comply with a court order. The Montana Supreme Court’s Commission on Practice found ethical misconduct and recommended that Knudsen be suspended for 90 days.

Due to recusals, only two justices participated in the case, and five trial court judges sat by designation. Writing for the majority, the chief justice seemingly distinguished Webster based on differences in the two states’ constitutions. Montana’s constitution requires the attorney general to be admitted to practice and “in good standing” and provides that the judicial branch’s power extends to regulating “admission to the bar and the conduct of its members.” There was no similar constitutional requirement for Texas’s attorney general, and the Texas courts’ power to regulate the practice of law is inherent and statutory, not contained in a specific constitutional provision. The majority also reasoned that the Webster court described its decision as “narrow” and applied to representations in initial pleadings, not to violation of a court order. The Montana court did not address Webster’s direct/collateral distinction.

The court went on to find that Knudsen had violated Montana Rules of Professional Conduct. It declined to impose discipline, however, because it concluded that Knudsen’s due process rights had been violated by Montana’s Commission on Practice.

The Montana court was right to avoid Webster’s ill-considered approach. The Webster decision contains dicta that could be used to strip state disciplinary authorities of the power to pursue a range of valid grievances against executive branch lawyers. Even in the pleadings context, an attorney general can have an enormous impact on the parties and on public perceptions. Permitting only the judge before whom pleadings are filed to initiate discipline ignores the realities of practice.

The Texas court’s contention that any discipline of Webster should have been instigated by the U.S. Supreme Court was fanciful. The Court receives 7,000–8,000 certiorari petitions each term, and it does not appear that the Court has ever imposed sanctions for frivolous or misleading filings. In a 1985 opinion, four justices explained that they opposed awarding even minor monetary damages for unmeritorious litigation because it was too time consuming to do it fairly.

Lower courts have also demonstrated little appetite for policing lawyer misconduct. They rarely impose sanctions for rule violations that occur in the cases before them. Doing so consumes precious time and court resources. And judges rarely refer lawyers to disciplinary authorities. When the misbehaving lawyer is a powerful state attorney general, trial judges are especially unlikely to impose sanctions in the first instance or make a discipline referral.

Disciplinary commissions are better equipped than courts to investigate lawyer misconduct and hold hearings in the first instance. These commissions have generally demonstrated restraint when handling grievances against executive branch lawyers. They should not be stripped of the power to investigate and pursue meritorious grievances against executive branch actors. Doing so may embolden some state attorneys general to further push ethical boundaries. Other courts will hopefully decline to follow Texas’s lead.

Leslie Levin is the Hugh Macgill Professor of Law Emerita at the University of Connecticut Law School. Her scholarship focuses on the legal profession, lawyer regulation, and ethical decision-making.

Suggested Citation: Leslie Levin, Texas Two-Steps Away from Government Lawyer Accountability, Montana Does not Follow, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Mar. 6, 2026), https://statecourtreport.org/our-work/analysis-opinion/texas-two-steps-away-government-lawyer-accountability-montana-does-not