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Marijuana legalization leads to ethical dilemmas for bar associations and attorneys
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Marijuana legalization leads to ethical dilemmas for bar associations and attorneys

A rare conflict between state and federal laws has caused bar associations in at least two states to become involved in trying to sort out the question of ethics vs. the law.

The legalization of the recreational use of marijuana in Colorado and Washington State has led to the kinds of legal questions that any industry faces, and for which a lawyer would normally be consulted. The problem, in this case, is that marijuana sale and use remains illegal under federal law.

"It is an ethics as well as legal issue, so long as the federal law is on the books," said Ken Goldsmith, ABA legislative counsel and director for state legislation.

What complicates the issue further is that the Obama Administration has said unofficially that it will not prosecute attorneys who advise clients about marijuana-relates issues in states where it is legal, Goldsmith said.

"A lawyer should be aware that so long as the federal law is on the books, advising a client could be construed as aiding and abetting in the perpetration of a known federal offense. A change in policy, or subsequent Administrations could still repeal the no prosecution policy," he said.

Bar associations and courts in the affected states are working to develop ethics guidelines for their attorneys who are asked to advise clients on marijuana-related matters.

The Colorado State Bar's Ethics Committee issued an Opinion in October that refers to the state's Rules of Professional Conduct (RPC), and says: "The novelty and complexity of the conflict between Colorado and federal law prevent the Committee from devising a bright line distinction between lawyer conduct that complies with Colo.RPC 1.2(d) and lawyer conduct that violates it…"

The Committee laid out a "spectrum of conduct" that outlines what lawyers may or may not do in such cases. For example, lawyers may represent a client in matters of the client's past activities; advise governmental clients on creating rules about the legal marijuana industry, and advise clients about the consequences of marijuana use or sale.

But, "it is unethical for a lawyer to counsel a client to engage, or assist a client, in conduct that violates federal law. Between these two points lies a range of conduct in which the application of Colo.RPC 1.2(d) is unclear," the Committee says.

There is a proposal under consideration in Colorado to amend the RPC to allow lawyers to be involved in matters that are legal in Colorado, and to not be considered in violation of the RPC "solely because that same conduct, standing alone, may violate federal criminal law."

In Washington, The Washington State Bar Association is considering an expedited request from the state's Supreme Court for its input into proposed changes to the RPC submitted by the King County Bar Association.

Like the Colorado proposal, the KCBA suggests creating a "safe harbor" for attorneys who perform legal actions under state law that violate federal law. The Bar also proposes to allow attorneys to consume marijuana, under state guidelines for that conduct.

In his initial comments, the WSBA Chief Disciplinary Counsel notes the conflict between an attorney's obligation to provide legal assistance in "conduct clearly in compliance with state laws," and the problem of violating federal law. He expressed some concerns about the specific KCBA proposals, which led the Court to ask for WSBA's formal input by Jan. 31, 2014.—by Dan Kittay

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