               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                    No. 86-397
              ___________________________________

IN RE THE MATTER OF THE REVISIONS TO THE                )
WATER RIGHT CLAIM EXAMINATION RULES                     )             ORDER
AND THE WATER COURT PRACTICE AND                        )
PROCEDURE RULES.                                        )
           ___________________________________

       We issued an Order, dated December 6, 2006, in which we adopted the First Amended
Petition and the Second Amended Petition submitted by the Honorable Bruce C. Loble, Chief
Water Judge of the Montana Water Court, to modify the water right claim examination duties
of the Department of Natural Resources and Conservation (DNRC) and to the Water Court’s
practice and procedure rules. In that same Order, we directed the Water Court, in
consultation with DNRC, Department of Fish, Wildlife and Parks (DFWP), and other
interested parties, to file within 60 days proposed rules regarding appearances by non-
lawyers in the Water Court.
       The Water Court filed the Petition to Adopt Rules Regarding Non-Lawyer
Appearances in the Water Court and Pre and Post Decree Conferences with DNRC Claim
Examination Staff (Petition) on February 5, 2007. The Court considered the Petition at its
public meeting conducted on March 20, 2007. We considered the Petition again at our public
meeting conducted on August 7, 2007. The Petition derives from the Water Court’s efforts to
comply with our directive that the Water Court work with other interested parties, including
DNRC, DFWP, and the Commission on the Unauthorized Practice of Law, to develop rules
regarding assistance by non-lawyers in the Water Court.
       We generally agree with the Petition to the extent that it would allow for non-lawyer
assistance during the administrative review process and during the initial settlement
proceedings before the Water Court. The first situation involves non-lawyers meeting with
DNRC personnel during the claim examination process. Proposed Rule 47, W.R.C.E.R.
addresses activities taking place during the DNRC claim examination process. We have
attached the new proposed Rule 47, W.R.C.E.R., to this Order as Exhibit A.
       The Petition also seeks revisions to Rule 16, W.R.Adj.R. As modified, the revisions
specify that non-lawyers could assist parties during initial settlement proceedings. The initial
settlement proceedings include the period between the time when the Water Court issues a
preliminary decree and the time when the Water Court issues a hearing track order. Proposed
Rules 16(a), 16(b), and 16(c), W.R.Adj.R., as modified by this Court, address the proper
involvement of non-lawyers in the process during the initial settlement proceedings. We
have attached the new proposed Rules 16(a), 16(b), and 16(c), W.R.Adj.R., as modified by
this Court, to this Order as Exhibit B.
       Proposed Rules 33(a), 33(b), and 33(c), W.R.Adj.R., clarify the scope of assistance
that a non-lawyer may provide in the Water Court process. Proposed Rule 33(a) limits
representation in the Water Court to licensed attorneys except when persons represent
themselves. Proposed Rule 33(b) confirms that a party need not be represented by counsel
when engaged in meetings and discussions with DNRC as part of the administrative
functions performed by DNRC. Proposed Rule 33(c) seeks to shield licensed attorneys from
charges of violations of the Rules of Professional Conduct based upon conferring,
negotiating, or resolving issues with “pro se” representatives in the Water Court process. We
have attached the new proposed Rules 33(a), 33(b), and 33(c), W.R.Adj.R., to this Order as
Exhibit C.
       We adopt proposed Rule 47, W.R.C.E.R., regarding activities that take place during
the DNRC claim examination process, proposed Rules 16(a), 16(b), and 16(c), W.R.Adj.R.,
regarding the involvement of non-lawyers in the initial settlement proceedings, and proposed
Rules 33(a), 33(b), and 33(c), W.R.Adj.R., regarding the need for attorney representation in
the water adjudication process. Our adoption of these three proposed rules reflects the
unique nature of the Water Court proceedings.
       These recommendations strike a balance between the unique nature of the Water
Court proceedings and Montana’s generally applicable laws and rules regarding the practice
of law. Allowing non-lawyers to assist parties during the claim examination process with
DNRC and the initial settlement proceedings provides needed flexibility to the system

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without opening the door to the wholesale involvement of non-lawyers. Once the Water
Court issues a hearing track order as part of the adjudicative proceeding, however, the more
generally applicable rules regarding the practice of law must apply. Therefore,
       IT IS HEREBY ORDERED that the Petition to Adopt Rules Regarding Non-Lawyer
Appearances in the Water Court and Pre and Post Decree Conferences with DNRC Claim
Examination Staff is GRANTED with respect to proposed Rule 47, W.R.C.E.R.; with respect
to proposed Rules 16(a), 16(b), and 16(c), W.R.Adj.R., as modified by this Court; and with
respect to proposed Rules 33(a), 33(b), and 33(c), W.R.Adj.R., as attached hereto and
incorporated by reference.
       IT IS FURTHER ORDERED that these amendments shall take effect upon the date of
this Order.
       IT IS FURTHER ORDERED that the State Bar of Montana publish in the next
available issue of The Montana Lawyer a copy of this Order. The notice shall indicate that
copies of the proposed Rule 47, W.R.C.E.R., attached as Exhibit A, Proposed Rules 16(a),
16(b), and 16(c), W.R.Adj.R., attached as Exhibit B, and the Rule 33, W.R.Adj.R., attached
as Exhibit C, are available for review and copying on the State Bar of Montana and the
Montana       State      Law       Library       websites,   www.montanabar.org,          and
www.law.library.state.mt.us. The Clerk of the Montana Water Court also shall post a copy
of this Order for public review in its office.
       IT IS FURTHER ORDERED that the Clerk of this Court give notice of this Order by
mail to John C. Schulte, President of the State Bar of Montana; Chris Manos, Executive
Director, State Bar of Montana; The Honorable C. Bruce Loble, Chief Water Judge, Montana
Water Court; Tim D. Hall, Legal Counsel, Montana Department of Natural Resources and
Conservation; G. Steven Brown, Attorney for the Montana Board of Natural Resources and
Conservation; Mike Murphy, Executive Director of the Montana Water Resources
Association; Krista Lee Evans, Environmental Quality Council; Judy Meadows, Librarian,
State Law Library; and Gregory J. Petesch, Code Commissioner. The Clerk of this Court
also shall give notice by electronic mail to the Clerks of the District Courts of the State of

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Montana. The Clerks of the District Courts of the State of Montana shall, in turn, post a copy
of this Order for public review in these offices, and shall provide a copy of this Order to the
respective District Court Judges.
       IT IS FURTHER ORDERED that the Montana Water Court shall mail a copy of this
Order to the members of the Water Adjudication Advisory Committee.
       DATED this 21st day of March 2008.

                                                          /S/ KARLA M. GRAY
                                                          /S/ BRIAN MORRIS
                                                          /S/ JOHN WARNER
                                                          /S/ W. WILLIAM LEAPHART
                                                          /S/ PATRICIA COTTER
                                                          /S/ JAMES C. NELSON
                                                          /S/ JIM RICE




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                                   EXHIBIT A



Rule 47. Unauthorized Practice of Law. It is not the unauthorized practice of law
for water users (with or without the assistance of attorneys) and department claims
examination personnel to confer, to exchange information, or to prepare, tender, and
accept amendments to statements of claim when they do so in accordance with the
Water Right Claim Examination Rules or § 85-2-243, MCA.




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                                     EXHIBIT B



Rule 16. SETTLEMENT AND MEDIATION.

Rule 16(a). Settlement Proceedings. The water court promotes and will facilitate
resolution of objections and issue remarks through settlement or mediation. Parties or
department claim examination personnel may confer and exchange information during
the initial settlement proceedings. Parties or department claim examination personnel
may prepare and tender documents during the initial settlement proceedings. Parties
or department claim examination personnel may file with the water court settlement
documents or issue remark resolution documents during the initial settlement
proceedings. Parties or department claim examination personnel will not engage in
formal discovery or file potentially dispositive motions before the water court issues a
hearing track order pursuant to Rule 16(c), W.R.Adj.R., without leave of the water
court.

Rule 16(b). Mediation. The water court, upon motion of a party or upon its own
initiative, may appoint a mediator to promote and facilitate settlement. The parties
shall share and pay the expense of hiring a mediator as directed by the water court.

Rule 16(c). Hearing Track. The water court will issue an order commencing formal
hearing proceedings if the parties fail to file settlement documents or issue remark
resolution documents within a reasonable amount of time after the water court has
issued a decree pursuant to Rule 3, W.R.Adj.R. The water court’s hearing track order
triggers the requirement that all parties, other than natural persons representing
themselves, must be represented by an attorney in all water court proceedings. The
water court’s hearing track order will specify the date by which all counsel must file a
notice of appearance with the water court.




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                                   EXHIBIT C




RULE 33. ATTORNEY REPRESENTATION.

Rule 33(a). Attorney Representation. After the water court issues its hearing track
order under Rule 16(c), W.R.Adj.R., only an attorney licensed to practice law in
Montana (or an attorney who is admitted pro hac vice) may represent a party in water
court proceedings except when natural persons appear pro se.

Rule 33(b). Unauthorized Practice of Law. Actions taken under Rule 16(a) or
16(b), W.R.Adj.R., do not constitute the unauthorized practice of law.

Rule 33(c). Rules of Professional Conduct. It is not a violation of Rule 5.5 of the
Montana Rules of Professional Conduct for an attorney to confer, negotiate or resolve
issues with an unrepresented party under Rule 16(a) or 16(b), W.R.Adj.R., during the
initial settlement proceedings, or for water court personnel to accept and rely upon
documents filed by or on behalf of an unrepresented party under Rule 16(a) or 16(b),
W.R.Adj.R.




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