Lawyers who assist clients with legal matters related to the marijuana industry may be in violation of ethical rules, according to an opinion issued by the Colorado Bar Association.
The opinion, issued in April 2012, is gaining attention in the legal community now that Colorado has begun allowing the sale and distribution of recreational marijuana.
The drug remains illegal under federal law, which creates a conflict for Colorado attorneys, according to the opinion.
Rules of professional conduct prohibit lawyers from assisting clients to engage in conduct that is criminal.
The opinion goes back and forth about what types of representation are permissible under the state’s rules of professional conduct. An addendum has been filed recommending that lawyers be allowed to provide legal services to clients about marijuana-related conduct permitted under state criminal law.
The revisions are expected to be heard March 6 before the Colorado Supreme Court.
In the meantime, it remains a gray area for lawyers to assist clients in the marijuana industry with contracts and leases. The ethics committee cites two specific examples: contracts to purchase and sell marijuana, and leases for properties or equipment that would be used to cultivate, manufacture, distribute or sell marijuana.
Denver lawyer Brian Vicente, who represents hundreds of businesses in the marijuana industry, said he disagrees with the bulk of the ethics opinion of April 2012. Lawyers need to be able to explain laws and help clients use those laws to build responsible businesses, he said. As more states decriminalize marijuana, the need for lawyers to craft leases and contracts will only increase, he said.
“If lawyers are not there advising people, you can end up with some really irresponsible businesses out there ... that don’t follow the really strict laws that we have,” said Vicente, who helped co-author Amendment 64, the state’s legalization measure. “To me, helping someone structure a lease that is 100 percent legal under state law is an important job.”
Vicente couldn’t think of any similar examples in which state law clashes with federal law, creating a conflict with ethical rules. Some states have tried to enact strict immigration laws that affront federal laws, but it hasn’t led to problems with attorney ethical rules, he said.
According to the opinion, it is perfectly permissible for lawyers to represent clients who have been accused of marijuana-related crimes. It also is permissible to counsel them about the law as it relates to past and future conduct.
Lawyers who serve government bodies such as the Durango City Council or La Plata County Board of County Commissioners also are largely given a pass when it comes to giving advice about implementing rules and ordinances relating to the marijuana industry.
“We’re OK when it comes to advising the county about implementing, developing regulations and regulating the industry, because that’s not considered facilitating under federal law,” said Todd Weaver, deputy attorney for La Plata County.
But government lawyers could get sideways with ethical guidelines if they help draft contracts to lease public facilities where a retail-marijuana exhibition might occur, he said.
Weaver said he would be nervous working in the private sector with clients in the marijuana industry. Malpractice insurance carriers could cancel attorneys who continue to do that kind of work, he said.
shane@durangoherald.com
