Colorado Lawyers Can Ethically Smoke Pot But Advising Clients on it Gets Hazy
December 2, 2013
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 124: Click here.
Link to Opinion 125: Click here.
This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved.
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Comments or inquiries may be directed to: Lee Katherine Goldstein