Can a Colorado water lawyer represent more than one client with water rights on the same river system?

Plain-English summary

Opinion 58 (adopted March 21, 1981; revision adopted October 14, 1995) addresses whether a lawyer's representation of one client owning or claiming water rights in a river system bars the lawyer or firm from also representing other water-rights clients in that system. The Committee stressed that the conflict rules apply equally to all lawyers, with no special standard for water lawyers, but issued the opinion to guide water practitioners given the unique nature of water-law practice. "River system" means the waters of the natural streams (surface flows plus alluvial and tributary ground water) tributary to the same river.

The Committee concluded that the mere fact that an attorney or firm represents two or more clients involved in water-rights litigation from the same river system does not, by itself, create an ethical impropriety. Although water adjudications are in rem proceedings binding everyone in a division, the degree of actual competition between rights owners varies greatly, and often there is no real competition at all: a decree confirms an appropriation's priority, source, rate, and uses but does not guarantee water will be available, and principles like the rule that a later adjudication cannot grant a priority senior to an earlier one, plus res judicata, generally insulate previously decreed rights from attack in a later proceeding. On a large system (the Colorado River system has at least 10,000 individual rights), adjudicating one junior priority typically has no legal impact on most existing rights, so absent other considerations no conflict arises from representing both.

A conflict does arise, the Committee concluded, when the water right or supply of one client is in fact impaired, or there is a likelihood of impairment, as a result of the representation of the other. The operative Rule 1.7 question in most water matters is whether the supply available under one client's decreed priority will be impaired by another client's endeavor. Examples of actual conflict include two appropriators filing in the same calendar year competing for the same scarce supply, or change-of-water-right or augmentation cases that would injure others' decreed rights. The lawyer must make a realistic assessment of actual and likely future stream administration, must protect each client's confidential information (Rules 1.6, 1.8(b), and 1.9), and must obtain each client's informed consent, including consent to any disclosures needed to evaluate the conflict. Where impairment is likely, a disinterested lawyer would conclude the client should not consent, so the lawyer must decline; where the likelihood is remote, the lawyer may proceed only after full-disclosure consultation and consent.

Currency note

This opinion's most recent revision was adopted in 1995, before Colorado's 2008 revisions to the Rules of Professional Conduct. It applies the version of Rule 1.7 then in force (the "directly adverse," "materially limited," and "disinterested lawyer" formulations), and refers to Rule 2.2 on a lawyer acting as intermediary, which Colorado has since abrogated. The current Rule 1.7 instead turns on informed consent, confirmed in writing, and the lawyer's reasonable belief that the lawyer can provide competent and diligent representation to each client. Treat this page as historical context, not current guidance. Verify against the current text of Rule 1.7 before relying on any specific provision.

Common questions

Q: Could a Colorado water lawyer represent two clients with rights on the same river?

A: Often yes. The opinion concluded that representing multiple clients with water rights in the same river system is not by itself an impropriety, because the actual competition between rights owners varies and is frequently nonexistent under the priority system.

Q: When did representing multiple water clients become a conflict?

A: When one client's supply would be impaired by the other's case. The opinion concluded a Rule 1.7 conflict arises when the water right or supply of one client is impaired in fact, or there is a likelihood of impairment, as a result of representing the other client.

Q: What had to happen before the lawyer could take on both clients?

A: A realistic impairment assessment plus confidentiality protection and consent. The opinion concluded the lawyer must assess actual and likely impairment given stream administration, protect each client's confidential information under Rules 1.6, 1.8(b), and 1.9, and obtain each client's informed consent after full disclosure.

Q: What if impairment of one client's water was likely?

A: The lawyer had to decline. The opinion concluded that where impairment is likely, a disinterested lawyer would conclude the client should not agree to the representation, so the lawyer could not proceed even with consent.

Background and rules framework

The opinion interprets Colo. RPC 1.7 (conflict of interest) as the central rule, read with Rule 1.6 (confidentiality), Rule 1.8(b) (no use of client information to the client's disadvantage), Rule 1.9 (duties to former clients), Rule 1.10 (imputation to the firm), Rule 1.11 (government lawyers), and the former Rule 2.2 (intermediary). It applies these against Colorado water law's priority and res judicata principles, including the statute governing relative priority of rights decreed on applications filed in the same year (C.R.S. section 37-92-306). The corresponding Model Rules are 1.7, 1.6, and 1.9.

Citations and references

Rules of Professional Conduct:

• Colo. RPC 1.7 / Model Rule 1.7 (conflict of interest; concurrent clients)
• Colo. RPC 1.6, 1.8(b) / Model Rules 1.6, 1.8 (confidentiality; no adverse use of client information)
• Colo. RPC 1.9 / Model Rule 1.9 (duties to former clients)
• Colo. RPC 1.10, 1.11 (imputation; government lawyers)

Statutes:

• C.R.S. section 37-92-306 (relative priority of water rights by year of application)

See also

• ABA Formal Op. 08-450: Confidentiality When Representing Multiple Clients in the Same Matter
• ABA Formal Op. 05-435: Representing a Client Against the Insured of a Client Insurer
• CBA Formal Op. 120: Representing an Organization as a Party in a Dispute

Source

• Landing page: https://www.cobar.org/ethicsopinions
• Original PDF: https://www.cobar.org/Portals/COBAR/Repository/ethicsOpinions/FormalEthicsOpinion_58.pdf?ver=2016-10-04-104003-080