Dana Elias Pepper

River and Range Law, PLLC

THE ETHICS OF ADVISING LANDOWNERS

Rule 2.1Advisor

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political facts, that may be relevant to the client’s situation.

Rule 1.7(a) Conflict of Interest: Current Clients

(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.

QUESTIONS

ETHICS OF ADVISING RECREATIONIST CLIENTS

Identifying the Client & Potential Conflicts of Interest

Abigail R. Brown | Farve & Brown Law, PLLC | Helena, MT

March 16, 2018 | Alexander Blewett III School Of Law

The Montana Stream Access Law Symposium

Montana residents

Out-of-state visitors

Out-of-state

landowners

IS THERE AN ATTORNEY-CLIENT RELATIONSHIP AND, IF SO, WHO

IS THE CLIENT?

• The “Cocktail Party Advice” scenario

• The nebulous potential client telephone call or

email

• Serving on an organization’s board of directors

• Discussions with an organization’s constituents

when you are the organization’s attorney

It is the lawyer’s obligation to be clear about whether an

attorney-client relationship exists and the scope of that

representation.

REPRESENTING THE INDIVIDUAL

RECREATIONIST

RULE 1.2 – SCOPE OF REPRESENTATION

& ALLOCATION OF AUTHORITY

a) A lawyer must abide by a client’s decisions concerning

objectives, means to pursue those objections (as required

by Rule 1.4), and settlement decisions.

b) A lawyer’s representation of a client does not constitute

an endorsement of the client’s political, economic, social

or moral views or activities.

c) Limited scope representation is permissible with

informed consent from the client.

d) A lawyer cannot counsel a client to engage in conduct

the lawyer knows is criminal or fraudulent, but may

discuss legal consequences of proposed conduct and

assist the client to make a good faith effort to determine

the validity, scope, meaning or application of the law.

THE MANY HATS OF A LAWYER:

• ADVISOR

• ADVOCATE

• NEGOTIATOR

• EVALUATOR

SEE PREAMBLE TO MONTANA RULES OF PROFESSIONAL

CONDUCT

CAN A LAWYER COUNSEL A RECREATIONIST CLIENT TO ENGAGE IN SELF-HELP

REMEDIES?

Comments to ABA Model Rule 1.2(d)

• This Rule does not preclude a lawyer from giving an honest

opinion about the actual consequences that appear likely to

result from the conduct.

• There is a distinction between (1) presenting an analysis of

legal aspects of questionable conduct and (2) recommending

the means by which a crime or fraud might be committed with

impunity.

• A lawyer may not continue to assist a client in conduct the

lawyer originally supposed was legally proper, but later

discovered is criminal or fraudulent. The lawyer must withdraw

and, in some cases, give notice of the withdrawal and disaffirm

any opinion, document, or affirmation (see Rule 4.1).

WHEN THE CLIENT IS AN ORGANIZATION

RULE 1.3 – ORGANIZATION AS CLIENT

a) A lawyer represents the organization through its duly

authorized constituents.

b) A lawyer must proceed as is reasonably necessary in the best

interest of the organization.

c) A lawyer may resign if the highest authority that can act on

behalf of the organization acts, or refuses to act, in a manner

that is a clear violation of the law and is likely to result in

substantial injury to the organization.

d) A lawyer must explain the identity of the client organization

when the lawyer knows or reasonably should know that the

organization’s interests are adverse to those interests of the

constituents with whom the lawyer is dealing.

e) A lawyer may also represent the organization’s directors,

officers, employees, members, shareholders or other

constituents subject to Rule 1.7 (conflict of interest).

CONSTITUENT: THE ORGANIZATION’S

OFFICERS, DIRECTORS, EMPLOYEES,

SHAREHOLDERS, OR EQUIVALENT

POSITIONS OF PERSONS ACTIVE FOR

THE ORGANIZATIONAL CLIENT

ABA COMMENTS TO MODEL RULE 1.13

• A lawyer’s professional duty to an organizational client apply equally to

unincorporated organizations. See MT Ethics Op. 870513

• Communication between the lawyer and a constituent, when the constituent is

acting in her organization’s capacity, is protected by Rule 1.6

(confidentiality). However, the constituents themselves are not the lawyer’s

clients and, therefore, the lawyer may not disclose to the constituent

regarding representation of the organizational client except as authorized

by the client in order to carry out the representation, or as otherwise

permitted by Rule 1.6.

• Decisions concerning policy and operation of the organization are not the

lawyer’s province. Therefore, decisions made by an organization must

generally be carried out by the lawyer, even if their utility or prudence is

doubtful. Unless, the lawyer knows the organization is likely to be

substantially injured by the action.

• The duties defined in this Rule apply to governmental organizations. However,

governmental lawyers may have duties defined by statutes and regulation.

This rule does not limit that authority. See MT Ethics Op. 940202

CAN A LAWYER REPRESENT BOTH LANDOWNERS AND RECREATIONISTS ON THE SAME SOURCE?

RULES 1.7 & 1.8: CONFLICT OF INTEREST (CURRENT CLIENTS)

A concurrent conflict of interest exists if:

• The representation of one client will be directly adverse to

another client; OR

• There is significant risk that the representation of one or

more clients will be materially limited by the lawyer’s

responsibilities to another client, former client or a third

person or by a personal interest of the lawyer.

Rule 1.8 identifies specific rules related to conflicts.

RULE 1.9: DUTIES TO FORMER CLIENTS

A lawyer may not represent a person in the same

or a substantially related matter:

• if that person’s interest are materially adverse

to the interests of a former client; or

• If the lawyer’s former firm previously

represented a client whose interests are adverse

to to that person; and about whom the lawyer

had acquired information protected by Rules 1.6

and 1.9(c) that is material to the matter

unless the former client gives informed consent in

writing.

DUTY OF LOYALTY AND INDEPENDENT

JUDGEMENT INFORM CONFLICT ANALYSIS

SITUATIONS IN WHICH A CONFLICT MAY ARISE

• DIRECTLY ADVERSE. Without informed consent, a lawyer may not

act as an advocate for one client against another client, even if the

client’s matters are entirely unrelated.

• MATERIAL LIMITATION. A conflict may arise if there is a significant

risk the lawyer’s ability to consider, recommend, or carry out an

action may be limited as a result of the lawyer’s other interests or

responsibilities.

• PERSONAL INTEREST CONFLICTS. The lawyer’s own interests

should not be permitted to have an adverse effect on

representation of a client.

• WHO IS PAYING THE LAWYER? If lawyer’s representation will be

limited by lawyer’s own interest in accommodating the person

paying the fees or to a payer who is also a co-client, the lawyer

must consider if the conflict is consentable and, if so, must get the

client’s consent

MORE CONFLICT OF INTEREST RULES

RULE 1.10: IMPUTATION OF CONFLICTS OF

INTEREST

RULE 1.11: SPECIAL CONFLICTS OF INTEREST

FOR FORMER AND CURRENT GOVERNMENT

OFFICERS AND EMPLOYEES

RULE 1.12: FORMER JUDGE AND OTHER

THIRD-PARTY NEUTRALS

RESOURCES

• State Bar of Montana:

• Montana Rules of Professional Conduct

• Montana Ethics Opinions

http://www.montanabar.org/general/custom.asp?page=Ethics

Opinions

• ABA Center for Professional Responsibility:

• Model Rules of Professional Conduct

• Comments to the Rules of Professional Conduct

• Numerous other ethics-related resources

https://www.americanbar.org/groups/professional_responsibi

lity.html

QUESTIONS?

Abigail R. Brown

Farve & Brown Law, PLLC

Helena, MT

406-547-5494

abby@farvebrownlaw.com

1985

• Galt takings challenges

• AG Opinion: snowmobiling and trapping

1987-1999

• Legislative / regulatory “fine tuning” (especially Commission regulation of recreational use)

• instream flow protections adopted in Water Use Act

2000

• Madison v. Graham federal takings challenge as applied

2000-2014 (Bridges)• AG Bridge

Opinion

• Bridge Access Bill

• Ruby River bridge litigation

2008

• Mitchell Slough and the scope of trust waters

2009-Present (Agency Actions)• administration of

stream access –bridges, portage, use restrictions

2010 -Present

• PPL Montana and ongoing questions of streambed ownership

MT Stream Access into the Future (Prof Brian Chaffin)

Key points of discussion:

• Stream access and Montana’s recreation economy

• Projected impacts of climate change on Montana’s streams, fish populations, and other recreation-related resources

• Future administration of the stream access law with regard to changing hydrology and increased recreational pressure

Stream access is tied to Montana’s recreation economy

• The outdoor recreation industry (all sectors) in MT generates $7.1 billion in annual consumer spending

• Creates 71,000 jobs

• $286 million in state and local tax revenue

• 81% of Montanans participate in outdoor recreation

• 7,800 jobs are directly sustained through hunting and fishing industries

• Stream access is undoubtedly a driver of residents and nonresidents to Montana’s fishable and floatable waters

Outdoor Industry Association (OIA) “Montana Outdoor Recreation Economy Report” (2017)

Declining snowpack and rising temperature will impact streamflow runoff and timing

Figures courtesy of Montana Climate Assessment, Whitlock et al. (2017), MT Institute on Ecosystems

Runoff timing and peak will shift to earlier in season – late season flows will decrease

Figures courtesy of Montana Climate Assessment, Whitlock et al. (2017), MT Institute on Ecosystems

Figure courtesy of Montana Climate Assessment,

Whitlock et al. (2017), MT Institute on Ecosystems

Streamflow temperatures

will continue to impact cold water trout

fisheries

Big questions of stream access related to climate change and tourism

• Will the definition and significance of “ordinary high water” mark be called into question?

• The importance of Administrative closures—balancing the tensions of resource protection under climate change scenarios while ensuring stream access

• Potential increased use and viability of private petitions for stream closures or limitations

• Dedication of instream flows under state law

• Voluntary fishery conservation under ESA

• Cooperative management with tribes and federal agencies holding flow rights

• Consideration of public trust during permit review and change authorizations

Bryan, Hitching Our Wagon to a Dim Star, 32 Stanford Envtl. L. J. 283 (2013).

• MT Constitution Article IX, Section 3. (1) All existing rights to the use of any waters for any useful or beneficial purpose are hereby recognized and confirmed. …(3) All surface, underground, flood, and atmospheric waters within the boundaries of the state are the property of the state for the use of its people and are subject to appropriation for beneficial uses as provided by law.

• Curran dicta: “Curran has no right to control the use of the surface waters of the Dearborn to the exclusion of the public except to the extent of his prior appropriation of part of the water for irrigation purposes, which is not at issue here.” 210 Mont. 38 (1984).

• Bean Lake III, 311 Mont. 327 (2011) – non-diversionary and recreational water rights

“Under the Montana Constitution and the public trust doctrine, the public owns an instream, non-diversionary right to the recreational use of the State’s navigable surface waters.”

• Montana Trout Unlimited v. Beaverhead Water Co., 361 Mont. 77 (2011) – standing as proxy for public because of its particularized interests

“The Constitution and public trust ‘do not permit a private party to interfere with the public’s right to recreational use of the surface of the State’s waters.’” (citing Curran).

• MEIC v. DEQ, 296 Mont. 207 (1999) / MT Const. art. II §3, art. IX § 1

(1) The State and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.

....

(3) The legislature shall provide adequate remedies for the protection of the environmental life support system from degradation and provide adequate remedies to prevent unreasonable depletion and degradation of natural resources.

• Mont. Code Ann. §§ 85-2-311 and -402: absence of public trust review for new permits and change authorizations

• standard: “existing legal demands on the source of supply throughout the area of potential impact by the proposed use”

• large appropriations: “minimum streamflows for the protection of existing water rights and aquatic life”

• out-of-state appropriations: “water conservation” and “public welfare”

• Alaska Constitution (Article VIII §§ 3, 13)

• North Dakota: United Plainsmen Assoc. (1976)

• Idaho: Ritter, Kootenai Environmental Alliance, Shokal (1977, ‘83, ‘85)*

• California: Mono Lake and related regulations (1983)

• Washington: Rettokowski (1993) + Rev. Code Wash. § 90.03.247

• Arizona: San Carlos Apache Tribe (1999)

• Hawaii: Waiahole Ditch (2000)

• South Dakota: Parks v. Cooper (2004)

• Nevada: Lawrence (2011)