Are attorneys who work with marijuana businesses violating professional ethics by assisting folks whose actions are legal in Colorado but break federal law? According to the Colorado Bar Association, the answer is: Not always, but often. This conclusion concerns Warren Edson, an attorney who specializes in weed-related matters. But he believes it should also worry other lawyers whose actions appear to fall short of the CBA's standards, including the governor who signed the medical marijuana regulatory bill into law.
Questions involving marijuana and attorney ethics aren't new. We published an interview with DU professor Sam Kamin on the topic of potential oath-breaking back in January 2012.
At the time, Kamin told us that the conflict between the responsibility to uphold federal law while helping Coloradans navigate state rules "really puts lawyers in a difficult spot -- and even state regulators are facilitating criminal conduct. When they give someone a certificate saying, 'You can sell all the marijuana you want from your storefront,' you're helping that individual violate federal law."
Kamin isn't the only person in the legal profession to have taken note of this conflict over the years. Edson points out that he and his colleagues have been debating the matter since at least the year 2000, when Colorado voters approved Amendment 20, which legalized medical marijuana in the state.
But with recreational marijuana sales slated to get underway on January 1, the Colorado Bar Association has tackled the subject in detail in the December edition of The Colorado Lawyer, the CBA's regular publication.
The issue features "Formal Opinion 125," subtitled, "The Extent to Which Lawyers May Represent Clients Regarding Marijuana-Related Activities." Formally adapted in October, the opinion expands on an earlier determination that an attorney who uses medical marijuana isn't necessarily violating professional ethics by doing so. But in this case, the matter involves whether working with a pot client conflicts with a mandate in the Colorado Rules of Professional Conduct stating that "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal...."
The piece notes that "federal law treats the cultivation, possession, sale and use of marijuana for any purpose, even a medical one, as a crime," while Colorado statutes view weed in a very different way. As such, what's termed a "bright line distinction between lawyer conduct that complies" with the rule "and lawyer conduct that violates it" is difficult to draw. But the committee behind the opinion ultimately determines that lawyers who advise clients about past conduct, zoning and regulations and the use of pot before, during and after exercising their parental rights are in the clear.
In contrast, the committee concludes that the code "prohibits lawyers from assisting clients in structuring or implementing transactions which by themselves violate federal law," such as drafting or negotiating "contracts to facilitate the purchase and sale of marijuana or...leases for properties or facilities, or contracts for resources or supplies, that clients intend to use to cultivate, manufacture, distribute, or sell marijuana."
This remains true, the committee holds, "even though such transactions comply with Colorado law, and even though the law or the transaction may be so complex that a lawyer's assistance would be useful, because the lawyer would be assisting the client in conduct that the lawyer knows is criminal under federal law." Likewise, a lawyer would violate the rules by representing "the lessor or supplier in such a transaction if the lawyer knows the client's intended use of the property, facilities, or supplies, as such actions are likely to constitute aiding and abetting the violation of or conspiracy to violate federal law." And that's not to mention a significant gray area, where even the committee doesn't seem certain whether actions are okay or not.
Continue for our interview with Warren Edson about possible professional ethics violations by attorneys dealing with marijuana-related assignments. "Generally as an attorney, you aren't allowed to advise somebody on specific future bad acts -- like helping somebody plan a bank robbery or helping somebody deceive the government about taxes," Edson explains. "So they're equating this situation to that. They're saying marijuana is illegal federally, so giving specific business advice, whether it's about setting stuff up or helping people with taxes or leases, is also illegal under federal law -- so it's something the ethics committee says an attorney shouldn't be doing."
And the potential scofflaws aren't limited to practicing attorneys, in Edson's view. "If you want to work down the chain, many of the Colorado state legislators who signed off on [marijuana bills] are attorneys -- so, by the committee's logic, they'd be assisting people in getting around federal law. And Bill Ritter, the governor who signed 1284 [the main MMJ regulatory measure] used to be Denver's district attorney, and I assume he still has a law license. So he helped break federal law, too."
The same goes for "landlords knowingly renting buildings to marijuana businesses and a city that's collecting tens of thousands of dollars in tax revenue. How's that not money laundering? And how is [Denver City Attorney] David Broadwell not helping the city do it? So this is a really tangled web."
Moreover, Edson feels that forcing people in the marijuana industry to go without legal assistance invites chaos. "Does anybody really want these folks going around with self-written operating agreements or leases pulled off WhateverDocument.com?" he asks. "You'd think that would open up a nightmare if all of a sudden they said no one's allowed to talk to these folks. The state government creates industry rules from scratch -- hundreds of pages that change on a monthly basis. And they want poor business owners to figure out those rules on their own?"
Probably not. An addendum to the CBA committee's opinion recommends that the "Colorado Supreme Court 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." As such, "The Colorado Bar Association Ethics Committee supports this recommendation."
Why hasn't the state supreme court done so to date? "I'm not as conspiracy driven on this as maybe some other people are," Edson concedes. "My guess is that they've been too damn busy." But the CBA opinion "puts this more directly on their plate as something they should probably deal with."
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Until the jurists do so, marijuana attorneys remain at risk of professional sanction, as does any other lawyer who works with a pot business, including real estate or tax attorneys who deal with a wide range of clients. "In the short term," Edson says, "it's pretty frightening."
Send your story tips to the author, Michael Roberts.
More from our Marijuana archive circa January 2012: "Marijuana at the Crossroads: Event asks if MMJ lawyers are breaking oath."