UPDATE: Although the RPC proposal mentioned below is still under consideration by the Washington State Supreme Court, the KCBA Board of Trustees has adopted an ethics advisory opinion to assist the bar in the interim as attorneys consider practice issues under the existing RPCs. The full text of the KCBA Ethics Advisory Opinion on I-502 & Rules of Professional Conduct can be found here.
An interesting question that has arisen in the wake of the passage of Initiative 502 (I-502) — Washington’s marijuana legalization measure — is whether attorneys run the risk of disciplinary action under the state’s Rules of Professional Conduct (RPCs) for advising clients on their marijuana business or for personally participating in the recreational use of marijuana.
Under Initiative 502, both activities are technically legal under state law, however, they remain illegal under federal law, creating a catch-22 situation. When trying to solve this dilemma, the RPCs unfortunately offer no guidance, and there are no ethics advisory opinions that address the issue.
Due to this lack of guidance, Washington lawyers have been left to wonder what the potential consequences might be. Indeed, earlier this month, King County Bar Association (KCBA) President Anne Daly asked in an article on the subject, “where does this leave…the more than 14,000 lawyers in King County who could easily find themselves in [this] predicament?”
According to Daly, KCBA attempted to solve the conflict between state and federal law several months ago by adopting a resolution for presentation at the American Bar Association’s House of Delegates meeting in August. However, KCBA withdrew the resolution when the Washington State Bar Association (WSBA) refused to support it. WSBA instead opted to refer the issue to its Committee on Professional Ethics, which is scheduled to meet this month.
In an effort to solve the problem of whether attorneys can use marijuana and advise marijuana businesses that may violate federal law without punishment prior to I-502’s December 1 implementation date, the KCBA Board of Trustees proposed the addition of language to the RPCs clarifying that attorneys would not be in violation of state ethics rules if their federal transgressions are permitted under state law. Specifically, the KCBA Board drafted a proposed comment to RPC 8.4 (Misconduct) that would address the issue of a lawyer who engages in legal state action, such as a lawyer’s personal use of marijuana. Daly explains:
The comment recognizes that a lawyer’s use of marijuana may cause a lawyer to violate other state laws, such as prohibitions upon driving while impaired, and other rules, such as the lawyer’s duties of competence and diligence. Such violations may subject the lawyer to discipline. However, consuming marijuana in and of itself — like the consumption of alcohol — would not be misconduct.
In addition, the KCBA Board voted in favor of a drafting new RPC that would create a safe harbor for attorneys who counsel clients engaging in conduct that would be permissible under Washington law, but may violate federal law.
KCBA now plans to forward its proposed RPC comments and new rule to the Washington Supreme Court for review. Daly is urging the justices to act swiftly in amending the RPCs thereby providing some ethical guidance to attorneys facing the unique challenges presented by I-502.