Complaint against Payne dismissed

The Montana Office of Disciplinary Counsel has dismissed the complaint filed against former Libby City Attorney Richard Allan Payne filed by Councilman Allen Olsen and former Councilman Gary Neff last year.

In the ruling, Chief Disciplinary Counsel Shaun R. Thompson wrote the complainants did not present sufficient evidence to meet the state’s burden of proof for disciplinary matters.

“When reviewing a grievance, ODC must bear in mind that in disciplinary proceedings it has a ‘clear and convincing’ burden of proof,” Thompson wrote. “There is insufficient evidence to prove Mr. Payne committed an ethical [violation].” 

Neff and Olsen filed the complaint in November 2015, alleging Payne violated several Montana Rules of Professional Conduct. Specifically, they claimed Payne had conflicts of interest due to his representation of Lincoln County, Lincoln County Port Authority and the City of Libby with regard to a subpoena issued in the port authority’s ongoing litigation with Stinger Welding, his prior relationship with Libby Mayor Doug Roll and local attorney Heather McDougall, to whom Payne subcontracted a prosecution in which he acknowledged a conflict of interest existed. They further claimed Payne did not provide sufficient information to the City Council, especially with regard to a subpoena served upon the city by Stinger’s attorneys.

Payne argued that while he represented multiple parties in Lincoln County, some even involved in the same litigation, none of the parties were adverse to one another, so no conflict of interest existed. He also contended that he fulfilled his duty to inform the council by keeping the mayor and council president at the time, Bill Bischoff, informed of the status of legal actions related to the city. Both Mayor Doug Roll and former Councilman Bischoff submitted letters to the ODC supporting Payne’s claims.

Payne also argued Neff and Olsen did not have sufficient standing to bring the complaint to ODC in the first place, as his client was the City of Libby, not individual council members. Council members, he argued, cannot act individually on behalf of the city and without full council approval, could not file a complaint against the city’s legal counsel.

Thompson first addressed the issue of standing, ruling against Payne.

“Mr. Payne contends you have no standing to make your grievance because you are not his clients and you have alleged he has violated ethical rules involving duties to a client,” he wrote. “Mr. Payne is incorrect. Instead, ODC can consider any information it receives about alleged violation of lawyer ethics rules.”

Thompson then addressed the issue of conflicts of interest, ruling Payne did not violate any rules by representing multiple clients.

“Here, Mr. Payne, albeit for a short time, wore many hats in the Stinger case,” he wrote. “He represented LCPA, the city and Lincoln County. That is unusual, but representing multiple clients in litigation does not necessarily create a conflict of interest...Concerning the simultaneous representation of LCPA, the city and the county, their positions in the Stinger litigation do not appear to be adverse. Nor was there significant risk that the representation of one or more clients would be materially limited by the lawyer’s responsibility to another client.”

Thompson also ruled the decision to contract McDougall was not a conflict, nor was his prior relationship to Mayor Roll.

As to the allegation of failure to keep the council informed, Thompson also ruled Payne was not in violation of the ethics rules. Payne, he said, informed the mayor and the council president at the time, which fulfilled his duty to inform his client.

“ODC understands your concerns about the council as a whole not being informed of the subpoena and motion,” Thompson wrote. “While that may implicate political and policy issues, there is no lawyer ethical rule requiring that an attorney for an entity communicate with all decision makers.”

Neff and Olsen have 30 days from the date of the decision, March 29, 2016, to request a review of the dismissal. Olsen said he does not intend to appeal the decision.

“It’s not worth appealing,” Olsen said. “The bottom line is we no longer have Allan Payne as City Attorney. We believe in what we did and we stand by it, but a ruling is a ruling and we just need to move on.”

Neither Neff nor Payne responded to a request for comment prior to press time.