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What if Washington Lawyers Want to Toke, Advise Clients on Pot?

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By William Peacock, Esq. on October 15, 2013 1:54 PM

As lawyers, we can't advise our clients on the best way to break the law. We also aren't supposed to break the law ourselves. It's that ethics stuff that you slept through in law school.

In Washington (and Colorado), it is perfectly legal to toke up. Recreational use of marijuana, thanks to state initiatives, does not violate state law. It does, however, violate federal law to buy, sell, smoke, snort, chew, or to do pretty much anything with weed. So, when a Seattle lawyer wants to partake in a state-legal substance, or advise a client on the best way to structure her pot dispensary corporation, he may just be violating the Rules of Professional Conduct.

Drat.

King County "Takes the Lead"

Per the King County Bar Association, they proposed modifications to the Rules of Professional Conduct for adoption at the American Bar Association conference back in August. However, after the Washington State Bar Association declined to support the proposal (in favor of handling the issue via an ethics committee), KCBA withdrew the proposal and instead submitted it to the Washington State Supreme Court, asking for expedited consideration in light of the December 1, 2013 effective date of marijuana legalization in the state.

KCBA told The Stranger that the proposal was sent to the state supreme court in order to meet the October 15 deadline for submissions for this month's Supreme Court meeting. They hope that the court will provide guidance for attorneys in time for the December 1 implementation of legalization.

For their part, the Washington State Bar Association will discuss the issue at an ethics meeting next week, and should the Washington Supreme Court publish KCBA's proposed rules for comment, they'll weigh in at that time.

The Proposed Changes

The proposed changes deal with the two aforementioned problems: counseling clients to break federal law, and breaking federal law oneself.

New Rule 8.6

This rule would clarify that an attorney does not commit an ethics violation by engaging in conduct, or counseling a client to engage in conduct, which is either permitted by state law, or is an affirmative defense to state prosecution, when that conduct is, standing alone, a violation of federal law.

You're probably thinking, "any federal law?" Not exactly.

The comments to the proposed rule clarify that the rule specifically applies to Initiative Measure No. 502, and that the rule is not intended to cover any activity outside of marijuana-related federal crimes.

Proposed Additional Comment to Rule 8.4:

This commentary clarifies that marijuana use, while still a violation of federal law, does not "reflect adversely on the lawyer's honesty, trustworthiness, or fitness," though the commentary does note that marijuana use can still lead to ethics violations if it causes a lawyer to violate other laws, such as driving while impaired, or if it affects the lawyer's duties of competence and diligence.

Have any thoughts on marijuana legalization, and how it should be handled by state bar associations? Join the discussion on Facebook at FindLaw for Legal Professionals.

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