Ethics complaint filed against City Attorney

Two Libby City Council members have filed a formal complaint against Libby City Attorney R. Allan Payne, alleging violations of Montana’s ethical standards for attorneys.

In the complaint, mailed to the Office of Disciplinary Counsel Saturday, Neff and Olsen allege Payne violated four of the Rules of Professional Conduct with regard to Rule 1.2(a) scope of representation and allocation of authority between client and lawyer, Rule 1.4(1)(2)(3)(5b) communication, Rule 1.7(a)(b4) conflict of interest with current clients and Rule 1.13 organization as client.

Rule 1.2 of the Montana Rules of Professional Conduct states: “a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter.”

The councilmen allege Payne violated the rule by failing to inform the City Council about a subpoena issued March 10, 2015, requiring the production of documents related to a lawsuit between the Lincoln County Port Authority and Stinger Welding. 

After the city failed to produce the responsive documents, Stinger’s attorney filed a motion to hold the city and Payne in contempt of court and award attorney’s costs and fees related to the subpoena. 

Neff and Olsen claimed in the complaint Payne not only had a legal and ethical obligation to notify the City Council of the subpoena, but was also required by the rules to allow the city to make the decision as to how to proceed.

“The City Council as a whole was not notified and the individual members were unaware of the subpoena until much later,” they wrote in the complaint. “It is our belief Mayor Doug Roll and City Attorney Richard A. Payne have worked in concert towards keeping information from the council.

“Libby is a charter form of municipal government. All governing and policy forming authority is vested in the City Council by the Montana State Constitution and the Montana Code Annotated derived thereof. To resist or not resist the subpoena and the method to accomplish the action is a policy decision. Since the City Council was not consulted, informed consent could not be given.”

The councilmen further allege Payne had several opportunities to notify the council of the issue and seek guidance for action, but failed to do so.

“The firm Doney Crowley P.C., Richard A. Payne their designated principal, was appointed City Attorney Jan. 1, 2015,” they wrote. “From Jan. 1 until the present, Libby City Council has held 17 regular meetings. Payne has given reports at only three of those meetings. The minutes of the March 6, June 16 and Oct. 5 meetings are included in the exhibits. No mention of the subpoena is made or recorded.”

The councilmen also allege Payne’s role as attorney for Lincoln County Port Authority in the lawsuit with Stinger Welding constitutes a conflict of interest with his role as City Attorney, a conflict which should have been disclosed under Rule 1.7.

“(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (4) each affected client gives informed consent, confirmed in writing.”

The councilmen claimed Payne’s attempts to delay the production of documents required under subpoena was an action designed to benefit Stinger Welding, not the City of Libby.

“On March 20, 2015, Payne, on behalf of the city, states the city is non-party to the Stinger vs. Lincoln County Port Authority action,” they wrote. “Payne continued to resist producing city documents, without consulting or informing the council. Payne has never, orally or in writing, informed the council of why he is fighting the production of documents or that his representation of Lincoln County Port Authority now or in the future may create a conflict of interest. We comprehend the delay creates higher attorney fees for Stinger, which is an advantage for L.C.P.A. There is no apparent benefit to the city and since Payne has never consulted the council, it appears the city may be paying for part of L.C.P.A.’s attorney fees.”

A second conflict of interest alleged by the council members stems from Payne’s involvement as personal counsel to Libby Mayor Doug Roll prior to Payne’s appointment as City Attorney. Specifically, they referenced in the complaint the mayor’s sworn deposition in the city’s legal action against Olsen in 2013. In the deposition Roll said Payne had “helped me out with other legal matters, personally and otherwise.” 

Roll also stated there was no documentation of the arrangement, calling it a “gentleman’s agreement.”

“I didn’t hire him in the strict sense of the word,” Roll testified. “But I believe we have an agreement. He advises me on a number of different things, yes.”

At a previous meeting of the City Council, Payne denied having given legal advice to Roll, saying Roll was not qualified to determine what would or would not constitute legal advice.

“We believe an obvious attorney/client relationship exists and should have been revealed at the moment the mayor appointed Payne City Attorney,” they wrote. “It is understood the Office of Disciplinary Counsel cannot address the bribery issue. It does appear, since Doug Roll stated under oath that a client/attorney relationship exists, Payne’s assertion it does not flies in the face of evidence and reason.”

The council members also addressed Payne’s decision to contract an outside attorney, Heather McDougall, for work on a city case in January of this year. The council members said Payne acknowledged a conflict of interest existed in the case so he hired outside counsel for the matter, but did not specify the nature of the conflict to the council.

Payne did not respond to a request for comment before press time.

According to the Office of Disciplinary Counsel, there are several disciplinary enforcement mechanisms used in the event an attorney is found to be in violation. Those tools range from public censure and financial restitution up to suspension and permanent disbarment from the practice of law in Montana.