Colorado lawyers can ethically smoke marijuana, but must
think twice before giving legal advice to others relating to marijuana
cultivation, possession, sales, etc.
These are the conclusions set out by the Colorado Bar Association Ethics
Committee in Formal Ethics Opinions 124 and 125.
After legalizing the use of medical marijuana in 2000,
Colorado passed Amendment 64 in 2012 becoming one of the first states to allow
its residents to possess and smoke recreational marijuana. Other states are following in Colorado’s
footsteps, but the federal government has declined to join the trend. The conflict between the state and federal
laws creates a quagmire for Colorado attorneys in complying with the state’s ethics
rules.
The
Ethics Committee of the Colorado Bar Association has confronted
marijuana-related issues in two different contexts, resulting in the issuance
of two formal ethics opinions: (1) Formal
Opinion 124, “A Lawyer’s Medical Use of Marijuana” (2012); and (2)
Formal Ethics Opinion 125 “The Extent to which Lawyers may Represent Clients
regarding Marijuana-Related Activities.”
Opinion
124 concerns the possession and use of medical marijuana by attorneys. The committee opined that a lawyer’s medical
use of marijuana in compliance with Colorado law does not, in and of itself,
violate the ethics rules. To be a
violation, there must be additional evidence that the lawyer’s conduct
adversely implicates the lawyer’s honesty, trustworthiness or fitness as a
lawyer. However, the committee cautioned
that marijuana use that impairs an attorneys’ ability to provide competent
legal representation implicates additional rules such as the rule which
prohibits a lawyer from representing a client when the lawyer’s physical or
mental condition materially impairs the lawyer’s ability to represent the
client. In those cases, the use may give
rise to a violation of the ethics rules.
The committee also noted that it cannot speak to how the Colorado
Supreme Court or Office of Attorney regulation or other authorities may regard
the lawful use of marijuana.
The
second opinion, Opinion 125, tackled the issue of whether lawyers can ethically
advise clients about the many issues which arise with respect to the use of and
commerce in recreational marijuana, including its possession, cultivation and
sale. This issue was far more
complicated and the ethics committee was unable to derive a hard and fast rule
to guide lawyers. Instead, it described a “spectrum of conduct” ranging from
conduct clearly permitted to conduct clearly prohibited. The complexity derives from Colorado Rule of
Professional Conduct 1.2(d), which prohibits a lawyer from counseling or
assisting a client to engage in conduct that the lawyer knows to be criminal. As the committee noted, although Colorado has
decriminalized marijuana possession and use for medical and recreational
purposes, federal law criminalizes the cultivation, sale, distribution and use
of marijuana for virtually any purpose.
Thus, advising a client on the prospective cultivation, sale,
distribution and use of marijuana would be tantamount to advising the client to
engage in conduct that the lawyer knows to be criminal – at least under federal
law. If the conduct is illegal, the
comments to Rule 1.2 advise the lawyer not to undertake the representation, or
to limit the lawyer’s advice to an honest opinion about the actual consequences
that appear likely to result from a client’s conduct.
The
committee provided several examples along the outer edges of the spectrum of
marijuana related representation, illustrating representation which is
permissible and that which is prohibited.
Permissible:
●
Lawyers may represent clients regarding the consequences of past conduct. This applies to all areas of the law –
including family, employment, workers compensation, and criminal.
●
Government lawyers may counsel their clients regarding the creation and
application of zoning and other ordinances and legislation relating to
marijuana.
●
Government lawyers may counsel their clients regarding enforcement,
interpretation or application of marijuana laws.
●
Lawyers may advocate for changes in the law and assist clients in advocating
for change.
●
Lawyers may advise family law clients about the consequences of using marijuana
before, during or after exercising parenting rights or parting time (because
doing so is giving an honest opinion about the actual consequences that appear
likely to result from a client’s conduct).
Prohibited:
●
Lawyers may not assist clients in structuring or implementing transactions
which by themselves violate federal law (e.g., drafting or negotiating a
contract to facilitate the purchase and sale of marijuana).
●
Lawyers may not represent the lessor, lessee, purchaser or supplier in a
transaction for a property or supplies that clients intend to use to cultivate,
manufacture, distribute or sell marijuana.
Lawyers
will need to use their analytical skills to navigate the grey areas in
between. Although the two ethics
opinions appear to conflict by allowing an attorney to engage in personal
conduct relating to marijuana, but forbidding the attorney from counseling
others regarding marijuana-related conduct, the conflict results from the
ethics rules themselves and particularly Rule 1.2. Unless or until there is a change in the
federal law, or the state’s ethics rules, Coloradans will be left without legal
guidance when it comes to the prospective possession, use, cultivation and sale
of marijuana.
You can
read the ethics opinions here:
Link to Opinion 125: http://www.cobar.org/tcl/tcl_articles.cfm?articleid=8370
Lee Katherine
Goldstein is an appellate lawyer with the Denver law firm of Fairfield and
Woods, PC.
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