Concerns arise about Payne's possible conflicts of interest

Libby City Attorney Allan Payne’s involvement with other parties related to the Stinger lawsuit, in which he represents the Lincoln County Port Authority, has raised concerns regarding potential conflicts of interest and the manner in which the case is being addressed.

Stinger Welding’s attorney, David Cotner, filed a motion Aug. 20 to hold the City of Libby in contempt of court for failing to produce documents requested under subpoena. In the complaint, Cotner said Payne is using his relationships with the city, county and port authority to delay the proceedings.

“In short, Mr. Payne is improperly utilizing his multiple ‘hats’ as counsel for Lincoln County Port Authority and the city and acting unreasonably and vexatiously in disobedience of this court’s orders and his and his clients’ obligations under the Montana Rules of Civil Procedure,” Cotner wrote. “As such, the city and Mr. Payne should pay the defendants’ counsel’s costs and fees associated with obtaining documents from the city pursuant to 37-61-421, Montana Code Annotated, which have unnecessarily been incurred due to Mr. Payne’s and his clients’ conduct.”

Payne characterized Cotner’s claims as attempts at intimidation.

“Stinger has hired big bad Chicago lawyers that play hard ball and are willing to make sensational claims to intimidate,” Payne said.

Another layer of confusion stems from Payne’s claim, in a letter to Cotner of March 20, 2015, in which he claims to also represent Lincoln County in the Stinger matter.

“I am writing, pursuant to Mont.R.Civ.P. 45(d)(2)(B), as counsel for Lincoln County on this matter, to formally object to the subpoenas sent by your firm to Commissioner Mark Peck on behalf of Lincoln County,” Payne wrote.

Commissioner Mark Peck said he was unaware of Payne being asked by the commissioners to represent the county in the matter, but also acknowledged the possibility that previous commissioners had for Payne’s assistance.

“As far as I know, the commissioners did not authorize that representation,” Peck said. “I can’t speak to what the previous commissioners may have done. I can say that without a retainer agreement, I find the situation extremely concerning, that this action could have happened without our knowledge.”

More than four months after Payne’s letter to Cotner, Lincoln County Attorney Bernard Cassidy filed a notice with the court stating there was no retainer agreement in place with Payne regarding the Stinger Welding matter.

“It appears there may be some confusion as to whether or not Mr. Payne represents Lincoln County in this suit. The purpose of this letter is to notify all concerned that there is no retainer agreement between Lincoln County and Mr. Payne,” Cassidy wrote. “The Port, who is represented by Mr. Payne, as well as the City of Libby may have interests in conflict with that of Lincoln County.”

Messages left with Cassidy’s office to ascertain the specific nature of the potential conflicts and the delay between the original filing and the county’s denial of Payne’s representative status were not returned.

Concerns are also rising from one of Payne’s other clients, the Lincoln County Port Authority. Board member Kevin Peck said the port authority was not aware of Payne’s status as counsel to Lincoln County in the matter.

“The board was not aware that he claimed to represent Lincoln County with regard to the subpoena,” Peck said. “The board hasn’t had an opportunity to discuss it yet, but my guess is the board will direct him to correct his mistake.”

Kevin Peck said the port authority has received nothing from Payne indicating a potential conflict of interest with regard to his other clients and their interests in the litigation.

Commissioner Mark Peck said he has specific concerns about how the situation was handled, but isn’t sure that Payne’s representation of multiple parties in the litigation constitutes wrongdoing.

“I’m not ready to say Payne did anything wrong,” Peck said. “My concern is that I don’t see any legal strategy. There should be some informed consent on the possibilities of conflict of interest. There should be some risk-benefit analysis on all of this interconnected stuff. When the judge ruled to quash the motion, why weren’t we notified about it?”

Libby City Councilman Brent Teske said he was not well enough informed to weigh in on the issue.

“I guess I need to spin myself up on this issue before I can really comment,” Teske said.

Councilwoman Dejon Raines said she was satisfied with Payne’s explanations, as documented in The Western News last week.

“I don’t have a good enough legal background to determine if this is an issue,” she said. “But I felt his explanation was sufficient.”

Councilman Allen Olsen disagreed with his colleagues’ assessment.

“I believe he has a huge conflict of interest,” Olsen said. “He really just needs to come clean about all of his involvement.”