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CRIMINAL JUSTICE: Lawyers, Marijuana, and Ethics

By Peter A. Joy and Kevin C. McMunigal

As state marijuana laws have dramatically changed in recent years, more and more lawyers have asked state ethics authorities for guidance about how these changes in the legal landscape impact the ethical obligations of and limitations on lawyers. In this article, we review the guidance state ethics authorities have offered so far to their lawyers about how to practice ethically under the new marijuana regimes found now in more than half of the American states.

The dilemma. The trend of states reversing their positions on the legality of marijuana creates a unique and troubling dilemma for lawyers practicing in these states. While growing, distributing, selling, and using medical or recreational marijuana is legal in many states, it continues to be a crime under federal law. There are two dimensions to the dilemma created by the increasing schism between state and federal marijuana laws. First, advising and assisting a client with acts that are legal under state law but illegal under federal law may violate state ethics rules. Second, the same activity may make the lawyer an accomplice under federal criminal law. In sum, lawyers advising and assisting clients in a marijuana business potentially face both ethical sanctions by the state and criminal sanctions by the federal government. We address below only the first of these— potential ethical sanctions.

What may a lawyer do in a “decriminalized” state? Just as state marijuana laws have changed rapidly in recent years, ethical guidance to lawyers in “decriminalized” states has also evolved rapidly, with changes occurring every few months.

Adding to the ethical uncertainty surrounding lawyers and marijuana is the fact that the guidance and limits regarding what a lawyer may ethically do in regard to marijuana in some states has “flip-flopped” back and forth as various authorities have weighed in on the subject. Consider, for example, the various positions adopted in Colorado, one of the states that has pioneered marijuana decriminalization.

In 2012 Colorado decriminalized recreational marijuana. In 2013 Colorado Bar Association Formal Ethics Opinion 125 concluded that it was permissible for a Colorado lawyer to: represent a client in proceedings related to his or her past marijuana activities; advise government clients about marijuana rules and regulations; argue or lobby for or against marijuana rules and regulations; and advise a client about the consequences of marijuana use or commerce. But the state bar concluded that “under the plain language of Colo. RPC 1.2(d) . . . it is unethical for a lawyer to counsel a client to engage, or assist a client, in conduct that violates federal law.”

In March 2014 the Colorado Supreme Court effectively overruled Ethics Opinion 125 by adopting a new comment to Colorado Rule of Professional Conduct (RPC) 1.2(d), providing that a lawyer may counsel a client regarding Colorado’s marijuana laws and may assist a client in conduct that the lawyer reasonably believes is permitted by the statutes, regulations, orders, and other provisions implementing them, and shall also advise the client regarding related federal law.

In November 2014 the U.S. District Court for the District of Colorado “opted out” of the new comment to Colorado RCP 1.2(d). It concluded that Colorado lawyers who practice before it are permitted to advise clients about the “validity, scope, and meaning” of Colorado’s marijuana laws. But, contrary to the Colorado Supreme Court’s recent amendment of the comment to Colorado RCP 1.2(d), lawyers who practice in the federal district courts may not “assist a client in conduct that the lawyer reasonably believes is permitted by” those laws. So now, Colorado lawyers who practice in federal courts are subject to conflicting guidance from state and federal authorities about how they may ethically act in relation to Colorado’s marijuana laws.

An overview. States whose ethics authorities have addressed how lawyers may ethically behave in states that have decriminalized marijuana have been uniform in addressing certain, typically noncontroversial, issues. For example, every state that has addressed the ethical implications of marijuana decriminalization has said that it is appropriate for a lawyer to defend a client whose past activities may have been in violation of either state or federal marijuana laws. Also, states have uniformly found it appropriate for a lawyer to explain to a client the current contours of state and federal marijuana laws.

A number of states have specifically amended their ethics codes to address the implications of marijuana decriminalization. All that have done so allow the state’s lawyers to advise and assist clients acting in compliance with the state’s marijuana laws regardless of federal illegality. The key state ethics rules at the heart of debate over whether lawyers should be able to advise and assist clients in the marijuana business are the state analogs to ABA Model Rule of Professional Conduct 1.2(d). Like Model Rule 1.2(d), these rules typically provide that a lawyer “shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal.”

States such as Ohio and Oregon amended the actual language of their versions of Rule 1.2(d). States such as Colorado, Nevada, and Washington amended the comment to their versions of Rule 1.2(d) to the same effect.

In some states that have not amended their ethics rules to address the implications of marijuana decriminalization, ethics authorities other than the state’s supreme court have provided guidance. Ethics opinions in Connecticut and New Jersey do not allow lawyers to advise or assist clients involved in marijuana businesses, while opinions in Arizona, Illinois, and New York do allow lawyers to advise and assist such clients.

But in many states that have decriminalized marijuana, no ethical guidance at all has been forthcoming.

Our view. First, every state that has decriminalized marijuana either for medical or recreational purposes should provide clear guidance to its lawyers about what they are ethically permitted to do in relation to the state’s new marijuana laws. Second, the best way for a state to provide this guidance is for its state supreme court to amend the state’s ethics rules to specifically address its current marijuana laws. Finally, the better approach to addressing the dilemma created by the increasing divergence between federal and state marijuana laws is the one that has been adopted in Colorado, Nevada, Ohio, Oregon, and Washington through ethics rule amendments and in Arizona, Illinois, and New York through ethics opinions. In short, a state that has decriminalized its marijuana laws should allow its lawyers to advise and assist clients in the state. One of the primary objectives of legal ethics rules is to increase compliance with the law. This includes a state’s newly enacted marijuana laws. This essential objective will not be served if the entire bar of a state are required to sit on the sidelines and let the citizens of the state try to figure out on their own the often detailed requirements of a state’s marijuana laws. In addition, a common objective of both the new state marijuana laws and the current federal enforcement guidelines (as set forth by the Department of Justice in an August 29, 2013, memo by Deputy Attorney General James Cole, tinyurl.com/zukglx4) is a “strong and effective state regulatory and enforcement system.” Simply put, this objective is much more likely to be realized if a state’s lawyers are empowered to advise and assist clients on how to comply with that regulatory and enforcement scheme.

ABA CRIMINAL JUSTICE SECTION

This article is an abridged and edited version of one that originally appeared on page 29 of Criminal Justice, Spring 2017 (32:1).

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PERIODICALS: Criminal Justice, quarterly magazine; Criminal Justice Newsletter, three times per year; White Collar Crime Newsletter, two times per year (electronic).

BOOKS AND OTHER RECENT PUBLICATIONS: Trial Tactics; Street LegalThe Citizenship FlowchartThe State of Criminal JusticeLeapholes (fiction); Achieving Justice: Freeing the Innocent, Convicting the GuiltyABA Standards for Criminal JusticeAnnual Survey of Supreme Court DecisionsAsset Forfeiture: Practice and Procedure in State and Federal CourtsThe Child Witness in Criminal CasesThe Criminal Lawyer’s Guide to Immigration LawThe Shadow of Justice (fiction).

Peter A. Joy is the Henry Hitchcock Professor of Law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri.

Kevin C. McMunigal is Professor of Law at Case Western Reserve University School of Law in Cleveland, Ohio.