The Colorado Supreme Court allows in-state attorneys to work with legal marijuana businesses without breaking ethics codes.
On Monday, March 24 of this year the Colorado Supreme Court announced a ruling that grants the state’s lawyers the right to advise members of Colorado’s medical and recreational marijuana business community. The ruling resolves a previously ambiguous state of affairs involving legal counsel of the marijuana industry that could have placed attorneys in breach of federal ethics rules.
This new ruling helps to clarify the status of lawyers hired by members of the medical and newly-legalized recreational cannabis industries in Colorado. Up to this point, attorneys offering counsel to marijuana businesses had to contend with ongoing concerns that their work could conflict with Colorado Ethics Rules because under federal law marijuana is still an illegal, controlled substance.
All Colorado attorneys are sworn to uphold the American Bar Association’s Model Rule of Professional Conduct, section 1.2(d) of which states that a “lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent….”
They must also follow the Colorado Rules of Professional Conduct, which reflect ideals similar to those found in the ABA code. Up until now, these rules may have dissuaded many lawyers in the state from advising clients in the marijuana business because their activities could potentially be construed as illegal under federal law.
The decision, originally reported by Reuters and picked up by various Internet media outlets including the Huffington Post, was a response to a request by the Colorado Bar Association to resolve the ostensible conflict. According to the Reuters article, Chief Justice Nancy Rice of the Colorado Supreme Court did just that, stating that Colorado lawyers “may counsel clients regarding the validity, scope and meaning” of the state’s newly implemented marijuana regulations.
Significantly, the ruling also requires lawyers in the state to fully inform their clients about federal cannabis regulations and to point out potential areas of conflict between these two sets of law.
A further request by the representatives of the Colorado Bar on the question of whether or not Colorado attorneys might incur any penalty or professional sanction for the personal use of marijuana was left unanswered by the state’s Supreme Court justices.
This ruling makes Colorado the first state to offer its lawyers clear guidelines on advice related to marijuana law. According to the chief of Colorado’s Office of Attorney Regulation Counsel, James Coyle, this ruling “gives attorneys unambiguous direction on what they can and cannot do” with regard to marijuana law. Four other states – Washington, Nevada, Rhode Island, and Connecticut – have moved to implement similar guidance.
The new ruling also sets an important nationwide precedent, particularly in the case of medical marijuana, which is now legal in twenty states and the District of Columbia. Meanwhile, many of these states are considering decriminalizing recreational marijuana, as have Colorado and the state of Washington.
Not all states, however, have opted to adhere to the example of Colorado. Arizona, a state that legalized the medical use of marijuana in 2010, has offered its attorneys a somewhat more restricted set of guidelines on this matter. The current state of legal counsel in Arizona, according to its State Bar of Arizona Ethics Opinions of 2011, requires lawyers to inform clients of federal regulations and to fully comply with state law – as does the Colorado ruling. Most importantly, this opinion states that if Arizona’s Medical Marijuana Act were to be overturned, partially or in full, the status of sanctioned legal counsel for marijuana industry clients could itself become invalid, thus keeping Arizona’s attorneys in an ongoing situation fraught with ambiguity.