State v. M. Payne, 496 P.3d 546

Payne was charged in separate cases (criminal mischief and PFMA) with trials set for July 19, 2016; he was released on bail conditioned to remain in Montana but traveled to California and did not appear for the trials.
Lane Scheveck was appointed counsel on June 1, 2016; he appeared alone on July 19 and told the court he had communicated with Payne about the hearing.
Payne was later charged with two counts of bail-jumping (one per missed trial); at the bench trial for bail-jumping (Aug. 29, 2018) Payne testified that Scheveck failed to timely notify him of the trial dates.
The State subpoenaed Scheveck; he moved to quash. After Payne testified, the State sought and the court issued a Gillham order compelling Scheveck to testify; defense counsel affirmatively declined to object.
Scheveck testified (somewhat inconsistently); the court convicted Payne on one bail-jumping count and dismissed the other on double jeopardy grounds. Payne appealed, challenging (1) allowance of Scheveck’s testimony and alleged waiver of privilege/effective-assistance violations, and (2) Scheveck’s failure to move for continuances in the underlying cases.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Payne)	Held
Whether the court erred in permitting Payne's former counsel to testify and whether that violated Payne's right to effective assistance	Scheveck could testify after Payne put counsel’s communications at issue by testifying; Payne (through counsel) did not object after Payne’s testimony, so privilege was waived	Payne never expressly consented to counsel testifying; any waiver was limited and the testimony exceeded its scope; letting Scheveck testify violated Payne’s right to effective counsel	Waiver: Payne’s testimony implicitly waived attorney-client privilege as to the subject; defense’s failure to object finalized that waiver. Allowing Scheveck to testify did not violate right to counsel.
Whether Scheveck’s failure to file a continuance motion in the underlying cases was ineffective assistance	Counsel reasonably decided a continuance was unlikely because Payne had violated release conditions and left the state; pursuing it would be futile	Scheveck failed to pursue a continuance despite Payne’s request, constituting deficient performance that led to missed trials and bail-jumping charge	Not ineffective. Counsel’s decision was objectively reasonable given the low likelihood of success and Payne’s own misconduct.

Sweeney v. Mont. Third Judicial Dist. Court, 391 Mont. 224, 416 P.3d 187 (2018) (attorney-client privilege bars compelling attorney testimony that would prove elements of a new charge against the client)
State v. Statczar, 228 Mont. 446, 743 P.2d 606 (1987) (only client can waive privilege; implied waiver requires conduct showing relinquishment and consideration of fairness/consistency)
In re Gillham, 216 Mont. 279, 704 P.2d 1019 (1985) (court order compelling attorney testimony may provide immunity for compelled disclosures)
Am. Zurich Ins. Co. v. Mont. Thirteenth Judicial Dist. Court, 364 Mont. 299, 280 P.3d 240 (2012) (explains purpose and scope of attorney-client privilege)
Strickland v. Washington, 466 U.S. 668 (1984) (establishes two‑prong test for ineffective assistance of counsel)
State v. Wereman, 273 Mont. 245, 902 P.2d 1009 (1995) (counsel’s on‑record statements about contact difficulties do not necessarily equal ineffective assistance)