Vol. 40, No. 1

Not dazed and confused: Amidst changing marijuana laws, bar associations help members find clarity

by Dan Kittay

Whenever there’s a change in a law, those affected by the change are going to ask questions. People often turn to lawyers for answers—and lawyers, in turn, often look to their state or local bar association for help.

The trend toward states legalizing some form of marijuana use is a good example of this phenomenon. Questions such as who can use the drug, who can grow and sell it, how much they can grow, where their businesses can operate, and a host of other generic business issues and specific industry issues arise each time a ban against marijuana is overturned.

Bars in such states are doing all they can to help their members deal with the onslaught of questions, many of which can be answered by a careful reading of the laws and the regulations they spawned. As of press time, there are 23 states that allow medical use of marijuana, and four states and Washington, D.C., allow possession for private use. D.C. does not yet allow sale for private use.

But there’s one question that no state bar has so far been able to answer definitively, and it’s a big one: How do you reconcile the fact that state law allows for marijuana possession and distribution in some form, and federal law does not? And with rules preventing lawyers from advising clients in how to engage in illegal activity, how does an attorney lawfully and ethically advise a client in the cannabis industry, when that industry revolves around a drug that is classified by the U.S. Drug Enforcement Administration as Schedule 1, the “most dangerous drugs?”

Complicating the matter was the stance by the U.S. Department of Justice that it would not generally look to prosecute businesses or lawyers who complied with state laws, unless there were other legal questions raised, such as whether a business was laundering money. And recent congressional action has resulted in a halt of federal raids of medical marijuana dispensaries.

The ABA Standing Committee on Ethics and Professional Responsibility has been monitoring the rule changes and opinions issued by states affected by cannabis law changes, says Dennis Rendleman, lead senior ethics counsel in the ABA’s Center for Professional Responsibility.

“The committee has been researching whether to propose a rule change or to issue an opinion relating to the perceived conflict” between state and federal laws regarding advising clients on cannabis-related issues, Rendleman says, adding that there is no current timetable for committee action on these matters.

Washington, Colorado first to legalize recreational use

“I’ve never seen anything like it,” says Doug Ende, chief disciplinary counsel at the Washington State Bar Association. Washington and Colorado were the first states to legalize recreational marijuana use, passing ballot measures in November 2012.

Ende says the closest analogy he can think of is the IRS regulation that requires cash transactions of more than $10,000 to be reported. Since some legal clients pay in cash, it’s possible that a lawyer would have to choose between reporting the transaction and violating client confidentiality.

Bar associations in Washington and Colorado had to answer many questions about marijuana laws from members, who in turn were fielding questions from clients and potential clients. Unlike states that legalized private use later, the first two “didn't have models to look at, both for a regulated industry, and lawyers who might be advising that regulated industry,” Ende recalls. “We were scrambling to catch up.”

In Washington, there was a gap between the measure’s passage in November 2012, and July 2014, when the first sales of private marijuana took place in the state. This time allowed the WSBA and others to try to sort out the various legal and ethical issues that legalization raised.

Both the King County Bar Association and WSBA submitted proposed amendments of the state’s Rules of Professional Conduct to the state’s Supreme Court, attempting to clarify that lawyers could provide advice that was consistent with state law, Ende says. Ultimately, he adds, the court made a change to its commentary on the relevant rule, saying that a lawyer can provide assistance to clients if the lawyer reasonably believes that the client’s conduct is permissible under state law.

The WSBA Committee on Professional Ethics gave an advisory opinion in June of this year on marijuana-related issues. The opinion allows lawyers to participate in activities permitted under state law but urges them to be cautious.

With minor variations, other states with legalized private use—Colorado, Alaska, and Oregon—have come up with similar opinions. All note the differences between federal and state laws and urge lawyers to advise their clients about those differences, and to remain vigilant to any change in climate regarding prosecutions.

To help members better understand these laws, there have been numerous CLE programs dealing with the legal and business aspects of cannabis law at the WSBA, Ende says. The same has been true in Colorado.

CLE, committees address cannabis law

The Colorado Bar Association has been offering cannabis-related CLE programming since medical marijuana was legalized in 2000, says Gary Abrams, executive director of Colorado Bar Association CLE. Among the topics discussed are issues for business owners, property owners, criminal defendants, and employers, Abrams says.  

With private-use legalization added to the mix, new seminars have been added to Colorado’s CLE schedule to help lawyers properly advise their clients on new issues that may arise. For example, Abrams says, there are possible implications in family law: “In a divorce case, if one parent uses marijuana, does that make them a bad parent, even though it’s legal?” Questions about a lawyer who lawfully uses marijuana can also come up, he adds, in terms of possible impairment.

A number of bars have formed committees to study ongoing issues in the area. The Colorado bar’s Cannabis Law Committee began under immediate past President Charley Garcia, who was part of the governor’s task force that helped draft the state’s marijuana regulations. The committee has been presenting CLE programming, working with the bar’s sections, and bringing together lawyers whose practices in one way or another are touched by the marijuana industry, Garcia says.

Alaska: ‘The most comments I’ve ever seen’

In Alaska, which along with Oregon approved private use in 2014, the Alaska Bar Association had the benefit of looking at the pioneering work of Colorado and Washington in helping establish what lawyers could and could not do under the new law, says Steve Van Goor, who recently retired as bar counsel. “We were able to draw on their experiences, and put the language they developed in front of the committee” that was helping to draft state regulations, Van Goor notes.

The Alaska bar published a proposed amendment to the state’s Rules of Professional Conduct in the bar’s newspaper and invited members to comment. “We got the most comments I’ve ever seen in 32 years as bar counsel,” Van Goor says. The vast majority were in favor, he adds, with some opposed because of the conflict between state and federal law.

The Alaska bar has used its website to keep members up to date on marijuana-related questions, and also provides ethical guidance through the bar counsel’s office, Van Goor says. The bar is planning at least one upcoming CLE program on criminal defense issues related to marijuana, says Maria Bahr, current Alaska bar counsel.

As of press time, regulations relating to the sale and growth of recreational marijuana in Alaska have yet to be finalized. Possession of small amounts became legal there in February 2015.

Oregon: Recreational use goes legal on October 1

In Oregon, legal sales of recreational marijuana were set to begin on October 1 of this year. The Oregon State Bar went through similar uncertainties with the ethics questions surrounding the federal law issue, says Helen Hierschbiel, the bar’s general counsel. The state’s revised rules require lawyers to advise clients about any conflicts between state and federal law, Hierschbiel says, adding that the bar has presented CLE programs on marijuana issues and will continue to do so.

In states that have legalized private marijuana use, there has been some discussion among bars regarding members and employees who might use the drug, and what action, if any, the bar should take. The leaders we spoke with for this article all said that in both cases, normal rules of not being impaired while working would apply, and that this would be handled the same way as alcohol or other legal substances that can alter one's behavior.

Legalization: Coming soon to your state?

The trend toward more states acting to legalize at least some use of marijuana is likely to continue, says Allen St. Pierre, executive director of NORML (the preferred name for the National Organization for the Reform of Marijuana Laws).

“When NORML was formed in 1970, Gallup [polls] indicated 10 percent of the population supported legalization," St. Pierre notes. "Now, Gallup says 55 percent of people support it.”

One state that may soon see a change in marijuana’s status is Ohio. A measure on the November ballot seeks to legalize medical and private use of marijuana, says Bill Weisenberg, senior policy advisor to the Ohio State Bar Association. The OSBA has posted articles and videos on its website that highlight the debate over this measure.

With the trend toward more states acting to legalize at least some use of marijuana, the leaders we spoke with had some advice for their peers in states where there hasn’t yet been activity: Keep an eye out for signs of change, and prepare on how to best keep members educated if legalization occurs.

“One thing I would say is, don't ignore it; start thinking about it now,” Hierschbiel says. “If we want people to develop these businesses in compliance with the law, they're going to need lawyers. It’s in everybody's best interests to have lawyers involved to be sure they're doing it right.”