Attorneys, ethics, and representing marijuana clients

I came across an interesting article – The Legal Ethics of Advising the Cannabis Client.  It focuses on attorneys representing marijuana clients – no, not the DUI type, but those that grow and sell legally in the states that allow it and the conflict created by federal laws that still view it as a controlled substance.  Rest assured, this isn’t my area of practice, although the question has been presented.  I thought, however, it might be interesting to blog on this since

a) I practice in a state that has legalized marijuana and b) perhaps it provides some food for thought in an area that will have increased regulations as it becomes more legalized in other states.

Who are the clients?

The article notes two main categories of potential clients: (1) the businesses that manufacture, distribute or sell marijuana and (2) third parties who essentially refer clients to the businesses.  This second category would include doctors, for example.

So what are the Ethics?

Ethics rule 1.2(d) of the Model Rules of Professional Conduct prevents an attorney from assisting a client in or engaging a client in anything that the lawyer knows is criminal or fraudulent, although the attorney can discuss the legal consequences of a client-proposed course of conduct.  However, many states have modified the ethics rules to allow attorneys to advise client’s regarding state laws about marijuana, but they also require attorneys to inform the client about federal law.  Colorado is one of those states.

Specifically, the article states “The Colorado Bar Association promulgated Comment 14 to Rule 1.2, specifically allowing attorneys to ‘counsel a client regarding the validity, scope, and meaning of Colorado constitution article XVIII, §§ 14 & 16’ (governing the personal use and regulation of marijuana), and to assist such clients ‘in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statutes, regulations, orders, and other state or local provisions implementing them.’ However, the lawyer ‘shall also advise the client regarding related federal law and policy.'”  See The Legal Ethics of Advising the Cannabis Client.

Other states have addressed the issue similarly with an amendment to their ethics rule.  Still, others, haven’t been as clear but essentially have informed the attorney that while it is alright to apprise their clients of state law, they should not advise them of state law if that would result in a violation of federal law.

So where do we go with this?

Well, it’s definitely an area that will continue to morph.  For those attorneys who represent cannabis clients, it will certainly be an area to watch regularly as it’s likely to change quickly.  Regardless, it seems somewhat safe to assume that attorneys can represent their clients who deal in cannabis within their state’s laws and ethical guidelines.  But, the attorney should also advise the client of the limits imposed by federal law and the risks the client may face.  Attorneys should evaluate their malpractice insurance as well.  Some malpractice insurers may not cover suits that relate to advise over cannabis businesses.  And, the attorney representing the cannabis client should be aware of pitfalls of the industry – i.e. additional criminal problems that could arise from advising the cannabis client.

Posted by Elle in Business