Colorado Lawyers Can Now Ethically Advise Clients Concerning Marijuana Use and Business Issues – Update on December Blog Post

April 10, 2014

By: Lee Katherine Goldstein

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.

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