Colorado lawyers can now ethically advise clients concerning marijuana use and business issues – update on December blog post

Last December, my blog discussed two Colorado formal ethics opinions concerning marijuana-related issues for lawyers.  One opinion reached the conclusion that lawyers could personally use marijuana without violating ethics rules (Ethics Op. 124), and the other, in seeming contradiction, concluded that lawyers could not ethically counsel clients on many of the business aspects of marijuana including its possession, cultivation and sale.  (Ethics Op. 125).  

Ethics opinion 125 highlighted the fact that Colorado Rule of Professional Conduct 1.2 created a catch 22 for lawyers.  The rule prohibits lawyers from counseling or assisting a client to engage in conduct that the lawyer knows to be criminal.  This prohibition would include marijuana related advice, because federal law criminalizes its cultivation, sale, distribution and use.  However, Colorado law legalizes these activities within certain parameters, so lawyers should be ethically permitted to provide legal advice in these areas.   

On March 24, 2014, the Colorado Supreme Court addressed the dilemma by adopting a new comment to Colorado Rule of Professional Conduct 1.2.  The comment clarifies that lawyers are allowed to advise and assist clients in conduct permitted by Colorado law concerning marijuana use, possession, cultivation and sales, stating:

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.

Colorado Rule of Professional Conduct, Comment 14.  The Colorado constitution sections referenced in the new comment refer to Colorado’s legalization of medical marijuana (section 14) and recreational marijuana (section 16).   Although it does not resolve many of the questions which arise from the conflict between state and federal law in this area, the new comment at least gives Colorado lawyers comfort that they will not run afoul of the Colorado ethics rules in providing legal advice to clients on marijuana related issues.  

My earlier post describing the Colorado formal ethics opinions can be found here: http://leekatherinegoldstein.blogspot.com/2013/12/colorado-lawyers-can-ethically-smoke.html

Lee Katherine Goldstein is an appellate lawyer with the Denver law firm of Fairfield and Woods, PC. 

Colorado Court of Appeals holds that ski area operators are not responsible for injuries caused by avalanches – an avalanche is an inherent danger or risk of skiing

According to the Colorado Avalanche Information Center (CAIC), since the 1950s avalanches have killed more people in Colorado than any other natural hazard, and in the United States, Colorado accounts for one-third of all avalanche deaths.¹   Given the well known risk of these localized natural disasters, it should come as no surprise that Colorado’s Court of Appeals has ruled that ski area operators are not responsible for injuries or deaths caused by an avalanche, and are not responsible to warn skiers of the risk that an avalanche may occur on the area’s ski runs.  Fleury v. IntraWest Winter Park Operations Corp., 2014 COA 13 (February 13, 2014).²

In Fleury, the Court was faced with the issue of who is responsible when a skier is injured or killed by an avalanche occurring within the boundaries of a ski area.  Ms. Fleury brought a wrongful death suit against the operator of Winter Park Resort after her husband was killed by an avalanche while skiing inbounds on one of the resort’s ski runs.  Ms. Fleury asserted that the ski area operator was liable for failing to warn that an avalanche was likely to occur on that run, and for failing to close the ski run on which the avalanche occurred.  The trial court granted judgment as a matter of law in favor of the ski area operator finding that the avalanche was an inherent risk of skiing, and that the ski area operator was therefore immune from liability under the Ski Safety Act.

The Colorado Legislature enacted the Ski Safety Act, Colorado Revised Statutes §33-44-101, et seq., in 1979.  In adopting the Act, the Legislature recognized that there are dangers inherent the sport of skiing, regardless of the safety measures that may be employed by ski area operators.  C.R.S. §33-44-102.  The Act was a legislative attempt to define the legal responsibilities of ski area operators, and of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers.  C.R.S. §33-44-102.  In 1990, the Legislature amended the Ski Safety Act to grant immunity to ski area operators for injuries resulting from any of the inherent dangers and risks of skiing, and broadened the definition of inherent dangers and risks in 2004.  C.R.S. §33-44-112.  The Act currently defines inherent dangers and risks of skiing as:

[T]hose dangers or conditions that are part of the sport of skiing, including changing weather conditions; snow conditions as they exist or may change, such as ice, hard pack, powder, packed powder, wind pack, corn, crust, slush, cut-up snow, and machine-made snow; surface or subsurface conditions such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, extreme terrain, and trees, or other natural objects, and collisions with such natural objects; impact with lift towers, signs, posts, fences or enclosures, hydrants, water pipes, or other man-made structures and their components; variations in steepness or terrain, whether natural or as a result of slope design, snowmaking or grooming operations, including but not limited to roads, freestyle terrain, jumps, and catwalks or other terrain modifications; collisions with other skiers; and the failure of skiers to ski within their own abilities.

C.R.S. §33-44-103(3.5).  Ms. Fleury asserted that an avalanche was not an inherent danger or risk of skiing under the Act since it was not specifically listed as such in the statute. The Court of Appeals rejected this assertion, concluding that an avalanche fits within the definition of inherent dangers and risks of skiing, because the statutory definition is illustrative rather than exclusive, and includes dangers resulting from certain conditions of snow, variations in steepness or terrain and changing weather conditions.  Avalanches, the Court noted, result from the effects of changing weather conditions on snow conditions in steep terrain, and are commonly understood as a danger.  Accordingly, they fall within the definition of inherent dangers and risks of skiing.  The Court further noted that defining an avalanche as an inherent danger is fully consistent with the legislative recognition that skiing is fraught with dangers, regardless of all safety measures that may be employed by a ski area. ¶16.  

The Court also rejected the claim that ski area operators should be held liable for failing to post a sign warning of avalanche danger. The Court noted that the Ski Safety Act only requires ski area operators to post signs relating to man-made obstacles, ski area boundaries, and the steepness of the terrain. ¶21-24.  The Act specifically does not require ski area operators to post a sign notifying skiers of "danger areas."  ¶22. 

The bottom line: Skiers are responsible for their own safety whether in the back country or at a ski resort.  Always know the snow conditions before heading out to the slopes.  You can check local conditions on the CAIC website: avalanche.state.co.us/

¹ Colorado Avalanche Information Center – avalanche.state.co.us/about-us/

² Opinion by Judge Fox; Navarro, J., concurs; J. Jones, J., dissents.

You can read the Court’s opinion here: http://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2014/13CA0517-PD.pdf

Lee Katherine Goldstein is an appellate lawyer with the Denver law firm of Fairfield and Woods, PC.