New marijuana laws across the country are putting lawyers in a unique bind. Giving advice to clients in the pot business could get them in trouble even though state law protects them.

legalize marijuanaThat’s because cannabis remains illegal under federal law. So counseling a client on how to run a marijuana business – even in a state where weed is legal – can be considered an ethical violation and could lead to disciplinary action.

Recreational pot is now legal in two states, Washington and Colorado, and medical weed is legal in another 18. Bar associations and state supreme courts across the country have been mulling the ethical implications of the conflict between state and federal law.

In Washington, the state Supreme Court is considering a proposal to change the ethics rules for attorneys to protect them as long as they abide by state law. The change was proposed by the King County Bar Association, though the state bar declined to endorse it. The court’s rules committee recommended adopting the rule.

“Without new rules of professional conduct, the Washington legal community would be telling its citizens that they may need to navigate this regime without the assistance of attorneys,” King County Bar President Anne M. Daley wrote to the Washington Supreme Court in early November. “The voters of Washington did not endorse this approach.”

The Colorado Supreme Court is considering a similar proposal.

States with medical marijuana have wrestled with the same issue. In Maine and Connecticut, where medical pot is legal, lawyers were told it would be an ethical violation to assist a client in violating federal law. In Arizona, on the other hand, the state bar association ruled that preventing attorneys from providing medical marijuana-related advice would deprive clients of assistance they need to follow the law.

Even the question of whether attorneys may use pot themselves is murky. In Colorado, the Supreme Court’s Office of Attorney Regulation Counsel advised that lawyers may use medical marijuana without violating ethical rules as long as they comply with state MMJ laws.american flag marijuana

The ethical dilemma for attorneys may be largely a hypothetical one. The Obama administration announced in late August that it would no longer interfere with states that legalize medical or recreational marijuana, as long as they enforce certain federal priorities – such as minimizing drug-related violence.

Doug Ende, chief disciplinary counsel of the Washington State Bar Association, said his group needed more time to consider the proposal before the state Supreme Court. He suggested it isn’t immediately necessary because the federal government has promised to back off and because there’s little risk of ethics prosecutions against lawyers who advise clients to follow state marijuana law.

There have been at least two complaints filed against lawyers for assisting clients in the marijuana business or for using marijuana since voters legalized pot in 2012, according to the King County Bar Association. The state bar never prosecuted those complaints, but the damage was done, Daley told the court.

“The effect on an attorney’s personal life and professional reputation from being accused of misconduct can be substantial, disruptive and expensive,” she wrote.


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