Ethical Considerations in Water Right Adjudications
| Publication year | 1988 |
| Pages | 2381 |
| Citation | Vol. 12 No. 1988 Pg. 2381 |
1988, December, Pg. 2381. Ethical Considerations in Water Right Adjudications
Water right adjudications are fraught with opportunities for ethical misadventure. With thousands of adverse water right claimants along a single stream system, adjudications of water rights can be entirely free from ethical conflicts of interest only if each claimant within a stream system is represented by separate counsel. As there simply are not enough water attorneys available, practicing water attorneys, the organized bar and the judiciary have formally and informally construed the ethical rules to accommodate the practicalities. This article presents the dilemma faced by private attorneys when representing water right claims and how the issue has been addressed by the Colorado Bar. It also discusses the special problems encountered by public attorneys in their representation of federal cases.
Under the Code of Professional Responsibility ("Code"), Canon 5, DR 5-105, an attorney's loyalty to a client must be preserved inviolate and not restrained or tempered by his or her representation of other clients.(fn1) Accordingly, under the Code as adopted in Colorado, an attorney must refuse proferred employment that would require him or her to represent differing interests which might infringe on client loyalty or otherwise adversely affect the attorney's independent professional judgment.(fn2)
An attorney must be especially careful not to violate DR 5-105 when representing clients before the water court. Under Colorado's Water Right Determination and Administration Act of 1969 ("1969 Act"),(fn3) a water claimant may pursue a determination of his or her water right individually by filing an application with the court.(fn4) Water right owners and users within the stream system are provided notice of the individual's application through monthly publication of a resume of new applications.(fn5) Any person desiring to oppose the application may file a statement of opposition with the water court.(fn6) Since such proceedings are in rem, all persons within the stream system, whether active participants or not, are bound by the outcome of the litigation.(fn7)
Because the interest of each water right owner or claimant within a stream system is necessarily adverse to every other claimant, each water right owner or claimant, under a strict interpretation of the Code, should obtain separate counsel to ensure adequate representation of his or her rights. However, the ability of each interested person within a stream system to obtain separate, wholly unconflicted legal representation is a difficult, if not impossible, task. The number of attorneys in Colorado with the knowledge and skill to represent water claimants is limited, and at times may fall far short of the thousands of affected parties in a water rights adjudication. Furthermore, under the vicarious disqualification doctrine, when a water attorney is in conflict and disqualified from representing a certain client, his or her entire firm may also be disqualified.(fn8)
The Colorado Bar Association Ethics Committee adopted Ethics Opinion No. 58 ("the Opinion") to assist attorneys in determining whether an impermissible conflict of interest actually exists in the representation of more than one water right owner or claimant...
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