Split Colorado Supreme Court Approves New Bar Rule to Regulate Lawyers Working with Pot Players

As reported in this new Denver Post article, headlined "Colorado Supreme Court OKs lawyers to work with marijuana businesses," an notable amendment was made today to the Colorado Rules of Professional Conduct.  Here are the basics (with my emphasis added):

Colorado's lawyers now have the state's permission to work with marijuana  businesses, after the Colorado Supreme Court approved a rule change Monday that eliminates the threat of ethics sanctions.

The new rule gives lawyers the go-ahead to work with marijuana businesses —  even though those businesses are breaking federal law — so long as the lawyers  don't help businesses also break state law.  The  updated rule, signed by Chief Justice Nancy Rice, states  that a lawyer "may assist a client in conduct that the lawyer reasonably  believes is permitted by these constitutional provisions and the statutes,  regulations, orders, and other state and local provisions implementing them."  The rule requires lawyers also to  advise their clients about federal marijuana  laws and policies.

The notice of the new rule states that justices Nathan Coats and Allison Eid  dissented, though no explanation was given.

Colorado's constitutional amendments legalizing both medical and recreational  marijuana left Colorado lawyers in  a professional pickle.  Because ethics rules prevent lawyers  from helping clients do illegal things, the Colorado Bar Association last year  declared that lawyers could be in trouble for doing more than giving basic  advice to marijuana businesses.  Arranging a lease, negotiating a contract or  soliciting financial help would all violate ethics rules, according to the bar association's analysis.

Though no attorney had ever been disciplined for working with a marijuana  business, the opinion alarmed the growing number of lawyers in Colorado who  specialize in cannabis law.  They argued that lawyers are crucial in helping  marijuana businesses negotiate Colorado's complicated regulations.

Because I am not an expert on legal ethics and state bar rules, I am not sure it is unprecedented or unusual for a state rule to expressly require a state lawyer to advise certain clients about federal law.  My instinct is that it is unusual for a state legal ehtics rule to include such a mandate, which in turn reinforces my view that the laws and regulations surround state-legal marijuana industries will be quirky and complicated as long as federal prohibition remains firmly in place.  (In addition, I suspect unexplained dissents from the amendment of state ethics rules is also unusual.)

 

This article was authored by Douglas A. Berman and was originally published by Marijuana Law, Policy & Reform, a member of the Law Professor Blogs Network. Mr. Berman is the Robert J. Watkins/Procter & Gamble Professor of Law at Moritz College of Law, Ohio State University.

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