According to a new comment adopted by Colorado’s Supreme Court last week, Colorado lawyers who provide legal services to state-regulated medical and recreational marijuana businesses will not violate the state’s Rules of Professional Conduct.
The rule change added the following comment to Rule 1.2 regarding the scope of representation and allocation of authority between the client and the lawyer:
A lawyer may counsel a client regarding the validity, scope, and meaning of Colorado constitution article XVIII, secs. 14 & 16, and may assist a client in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statutes, regulations, orders, and other state or local provisions implementing them. In these circumstances, the lawyer shall also advise the client regarding related federal law and policy.
Previously, Colorado Rules of Professional Conduct had prohibited attorneys from aiding clients “in conduct that the lawyer knows is criminal.” Despite the fact that medical and recreational use of marijuana is legal within the state, lawyers were left at an impasse because the production, use, sale, and distribution of the drug is still illegal under federal law. Based on this prior rule, a Colorado lawyer providing anything more than basic legal advice to marijuana businesses could run afoul of his or her ethical obligations and faced disciplinary action.
The newly adopted comment provides a safe harbor for lawyers seeking to represent those engaged in the legal marijuana industry within Colorado. On March 24, 2014, the comment was signed by Chief Justice Nancy Rice and became effective immediately. Justices Nathan Coats and Allison Eid would not approve the comment.
Lawyers in Washington state also are in the process of navigating the ethical dilemmas presented by the potential representation of the emerging statewide legal marijuana industry; a similar dilemma is presented to those lawyers in other states seeking to represent clients in the medical marijuana industry (in those states where it is legal). With the passage of Initiative 502, Washington became the second state in the nation to legalize the production and sale of marijuana for recreational use. However, as Washington’s ethics rules currently stand, lawyers could face discipline, such as disbarment, for advising marijuana business clients.
For the past few months, the Washington State Supreme Court Rules Committee has been considering proposals from both the King County Bar Association and the Washington Bar Association as to how lawyers can advise clients on issues where state and federal law conflict, specifically in response to Washington Initiative 502. Lawyers in Washington state are still awaiting the Rules Committee’s decision.