Date: 10-28-2015

Case Style: Tucker v. Town of Minturn

Case Number: 14SA295

Judge: Richard Gabriel

Court: The Supreme Court of the State of Colorado

Plaintiff's Attorney: Arthur B. Ferguson, Jr., Meghan N. Winokur, Kylie J. Crandall

Defendant's Attorney: Bennett W. Raley, Lisa M. Thompson

Description: In May 2012, Minturn filed its verified Application.
¶4 In his capacity as trustee of an undisclosed trust, Tucker, proceeding pro se, filed
a Statement of Opposition to the Application. Thereafter, during a case management
conference, the water court questioned whether Tucker, in his capacity as a trustee,
could proceed pro se, given that he was not an attorney but was representing the
interests of others. Because Tucker was not prepared to address this issue, the court
issued an order requiring Tucker to show cause in writing within seven days why he
should be allowed to proceed as a trustee without counsel. Alternatively, the court
ruled that Tucker could have counsel enter an appearance by the deadline for his
response to the show cause order.
¶5 Tucker subsequently filed a response, arguing that pursuant to C.R.C.P. 17(a), he
was permitted, as a matter of law, to act in his own name as trustee for the benefit of
others. He further argued that he had the right to represent himself in doing so. He did
not, however, provide any information about the trust, its beneficiaries, or the trust
agreement under which he purportedly was acting.
¶6 The water court was unpersuaded and ruled that Tucker, as a non-attorney,
could not properly represent the trust in a water proceeding before the water judge.
The court thus ordered Tucker to have counsel enter an appearance on behalf of the
trust by September 20, 2014. The court further stated that if Tucker did not do so, then
his statement of opposition and all pleadings and motions that he filed would be
stricken.
¶7 Tucker did not thereafter have counsel enter an appearance, and although the
water court does not appear to have entered an order striking Tucker’s previously filed
pleadings, it ultimately granted Minturn’s Application and entered a judgment and
decree in Minturn’s favor.
¶8 Tucker now appeals.

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II. Analysis
A. Trustee’s Right of Self-Representation
¶9 Tucker first argues that the water court erred in denying him the right to
represent himself notwithstanding the fact that he was acting as a trustee for an
undisclosed trust. We are not persuaded.
¶10 We review the water court’s legal conclusions de novo. Cherokee Metro. Dist. v.
Simpson, 148 P.3d 142, 150 (Colo. 2006).
¶11 The relationship between a trustee and a beneficiary is fiduciary in nature.
1 Austin Wakeman Scott, William Franklin Fratcher & Mark L. Ascher, Scott & Ascher
on Trusts § 2.1.5, at 37 (5th ed. 2006). “A fiduciary relationship involves a duty on the
part of the fiduciary to act for the benefit of the other party as to matters within the
scope of the relationship.” Id. at 38. Thus, in every trust, “there is something more than
a merely personal relationship between trustee and beneficiary; there is a duty on the
part of the trustee to deal with the property for the benefit of another.” Id. § 2.1.6, at 38.
In this way, a trustee acts as a representative of the trust beneficiaries’ interests.
¶12 Although we have not previously considered whether a trustee may proceed
pro se on behalf of a trust in a litigation matter, we have made clear in a number of
other contexts that a party who is not an attorney may not, without counsel, represent
the interests of others in a litigation matter. See, e.g., People v. Adams, 243 P.3d 256,
261 (Colo. 2010) (concluding that a non-attorney engaged in the unauthorized practice
of law when he pursued certain subcontractors’ claims in a representative capacity in
bankruptcy court); People ex rel. MacFarlane v. Howard, 612 P.2d 1081, 1081 (Colo.

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1977) (enjoining a disbarred attorney, in the context of an unauthorized practice of law
proceeding, from appearing before any court or administrative agency in Colorado in
propria persona as trustee for any trust for which he might be trustee); see also In re
Marriage of Kanefsky, 260 P.3d 327, 331 (Colo. App. 2010) (concluding that because the
conservators in a case were not licensed attorneys, they could not represent the
protected person in court proceedings without an attorney).
¶13 As we reasoned in Adams, 243 P.3d at 266, “The purpose of the bar and our
admission requirements is to protect the public from incompetent legal advice and
representation.” Non-attorneys are thus prohibited from undertaking activities that
require the exercise of legal discretion or judgment on behalf of others. Id.
¶14 Applying similar reasoning, courts that have addressed the question presented
here have concluded that a trustee who is not an attorney may not represent a trust pro
se in a litigation matter. See, e.g., Marin v. Leslie, 337 F. App’x 217, 219–20 (3d Cir.
2009); Knoefler v. United Bank, 20 F.3d 347, 348 (8th Cir. 1994); C.E. Pope Equity
Trust v. United States, 818 F.2d 696, 697–98 (9th Cir. 1987).
¶15 In C.E. Pope, 818 F.2d at 697, for example, the Ninth Circuit observed that
although a trustee who is not an attorney may appear in propria persona on his own
behalf, that privilege is personal to him, and he has no authority to appear as an
attorney on behalf of others. The court reasoned that the non-attorney trustee’s status
was as a fiduciary, and because he was not the actual beneficial owner of the claims
being asserted by the trusts at issue, he could not be viewed as a party conducting his

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own case personally. Id. Thus, he could not claim that his status as trustee included the
right to present pro se arguments on behalf of the trust. Id. at 698.
¶16 The Ninth Circuit’s analysis in C.E. Pope is consistent with our own analyses in
cases in which a non-attorney seeks to represent the interests of others in litigation, see,
e.g., Adams, 243 P.3d at 261; Howard, 612 P.2d at 1081, and we find the Ninth Circuit’s
analysis persuasive here. Accordingly, we conclude that a trustee who is not an
attorney may not proceed pro se on behalf of a trust in a litigation matter, and we
therefore affirm the water court’s order precluding Tucker from doing so.
¶17 We are not persuaded otherwise by Tucker’s argument that C.R.C.P. 17(a)
allowed him to proceed pro se in his capacity as a trustee. C.R.C.P. 17(a) provides, in
pertinent part, “Every action shall be prosecuted in the name of the real party in
interest; but a . . . trustee of an express trust . . . may sue in his own name without
joining with him the party for whose benefit the action is brought.” Although this rule
allows a trustee to sue in his or her own name, we perceive nothing in the rule, and
Tucker cites no applicable authority, that allows a trustee to proceed pro se in
representing the interests of a trust. Cf. C.E. Pope, 818 F.2d at 698 (noting that although
Fed. R. Civ. P. 17(a) authorizes a trustee of an express trust to sue on behalf of the trust
without joining persons for whose benefit the action is brought, that rule does not
warrant the conclusion that a non-attorney can maintain a suit in propria persona).
¶18 We likewise are unpersuaded by Tucker’s assertion that the water court violated
his right to due process when it purportedly denied his right to self-representation. For
the reasons set forth above, a non-attorney trustee is not entitled to proceed pro se on

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behalf of a trust. The water court explained this concept to Tucker and gave him an
opportunity to retain counsel, but Tucker, for reasons that the record does not disclose,
steadfastly refused to do so. In these circumstances, we perceive no violation of any of
Tucker’s constitutional rights. Cf. Woodford Mfg. Co. v. A.O.Q., Inc., 772 P.2d 652, 654
(Colo. App. 1988) (concluding that requiring a corporation to appear through an
attorney did not deprive it of due process).
B. Minturn’s Verified Application
¶19 Tucker next asserts that the water court erred in approving Minturn’s
Application because the verification supporting the Application was deficient in a
number of respects. In light of our conclusion that Tucker could not proceed pro se on
behalf of a trust, we decline to address this merits issue.

Outcome: For these reasons, the water court’s orders are affirmed.

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Defendant's Experts:

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