The Colorado Supreme Court released a decision Monday allowing Colorado lawyers to provide legal services to marijuana businesses.
Since the Rocky Mountain State opened its first retail pot shop in January, lawyers have been antsy about whether taking on "green" clients would rub up against the state's ethical rules. More than three months later, the Colorado High Court (cough) reported lawyers "may counsel clients regarding the validity, scope, and meaning" of the state's pot laws, reports Reuters.
Is there still room to be paranoid, or should Colorado lawyers mellow out?
Rules of Professional Cannabis Conduct
Lawyers have ethical duties to act within the laws of their states and the federal law, so it's been a bit of a balancing act for attorneys who aid state-sanctioned marijuana businesses.
Back in October, Washington lawyers had proposed changes to their state's ethical rules in order to allow lawyers to advise clients on the intersection between state and federal pot laws -- as well as kick back with a brownie on their days off. The Washington Supreme Court has not acted to adopt these changes just yet, and it appears Colorado will lead the way.
With two Justices dissenting, the Colorado Supreme Court adopted an amendment to its Rules of Professional Conduct allowing lawyers to:
- Counsel on the validity, scope, and meaning of Colorado marijuana laws,
- Assist clients in activities reasonably believed to be legal under state and local pot laws, and
- Advise client on related federal laws and policy regarding pot.
This comment directly speaks to Model Rule 1.2(d) and its state-adopted ilk which prohibit an attorney from counseling or assisting a client in criminal or fraudulent activity.
Not Exactly in the Clear
Although a blessing from the Colorado Supreme Court means a good deal with respect to ethics prosecutions by the Colorado State Bar, it may not mean much for lawyers who have pot shops as clients. Many of the legal trouble facing Colorado marijuana retailers is from federal prosecution and investigation, which may entail federal court.
After all, the Tenth Circuit hasn't changed its policy on attorneys counseling clients about marijuana. The local rules of the Tenth Circuit require attorneys to "conform to the highest standards of professional conduct" including the ABA's Code of Professional Conduct. It could be a problem if Colorado federal courts consider counseling a business which is operating in defiance of federal law "conduct unbecoming a member of the court's bar."
Typically admission to the federal bar in your jurisdiction is more of a formality, but this pot issue may put a fine point on the distinction between state and federal ethical rules. And there may even be judicial remedies for being disbarred by the Tenth Circuit.
Still, it may be worth the risk for Colorado attorneys to be a part of a booming industry in their state. And with the explicit permission the state's highest court, attorneys shouldn't be ethically "stoned" if they take on a pot client.
Have a "green" idea of your own? Tweet us @FindLawLP.
- Colorado Supreme Court OKs lawyers to work with marijuana businesses (The Denver Post)
- City Attorney Drops Joint in Court, Cited for Pot Possession (FindLaw's Greedy Associates)
- Marijuana Law Could Be Big Hit for CO, WA Lawyers (FindLaw's Strategist)
- Should You Become a Marijuana Lawyer? (FindLaw's Strategist)