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.)