Are attorneys who deal with state legal cannabis violating professional ethics?


Attorneys in Washington and Colorado advising clients on how to best follow state marijuana laws are still violating state ethics codes and could be sanctioned or lose their license to practice law because marijuana remains federally illegal.
That’s the tentative ruling from both the Colorado and Washington bar associations, though both admit they are hesitant to pursue any sanctions and have asked their respective Supreme Courts to fix the matter.

In Colorado, the state bar association has laws in place saying that “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal….” And that applies to federal laws. So the bar association has ruled that attorneys can advise clients on past involvement with state legal cannabis but not with any business advisement.
Thankfully, the Colorado bar recognizes the issue and conflict and has asked the Colorado Supreme Court to “adopt marijuana related amendments to the Colorado Rules of Professional Conduct. The proposed amendments would insulate a lawyer from discipline by the Colorado Supreme Court for the lawyer’s personal or medical use of marijuana and for the lawyer’s provision of legal services and advice on marijuana-related conduct.”
The same issues have also come up in Washington, where the state Supreme Court will have to make a ruling soon on whether or not attorneys can move forward with advising clients on state laws that fall afoul of federal laws.
Back in October, the King County Bar Association decided that attorneys could advise clients, have ownership in a dispensary and even toke up from time to time (or all the time, for that matter). However, they wanted an official opinion so they asked the state Supreme Court to change the wording of the state’s Rules of Professional Conduct for attorneys. The Supreme Court, in turn, asked the state Bar Association to weigh in.
According to the Washington State Bar Association, all of those things listed are illegal and therefore against the rules. But the bar association doesn’t plan on sanctioning anyone for breaking them, so long as the attorneys are following all other state laws governing cannabis. Doug Ende, chief disciplinary council for the Washington State Bar Association, says that this has been the case for years regarding medical marijuana laws.
“The Office of Disciplinary Counsel has not disciplined and does not intend to discipline lawyers who in good faith advise or assist clients or personally engage in conduct that is in strict compliance with I-502 and its implementing regulations,” he wrote to the Seattle Times.
But then the KCBA decided to cite the ethics opinions of bar associations in Maine and Connecticut that said attorneys couldn’t advise against breaking the federal Controlled Substances Act. Now the Supreme Court is back to considering the issue, and is asking for comments from the Washington State Bar Association early next year.
No word on when either state Supreme Court will make a judgement.