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Don't Let Your Practice Go to Pot -- Marijuana and Lawyer Ethics

By Cristina Yu, Esq. | Last updated on

Your state has legalized -- or partly legalized -- marijuana and now you've got a client who wants advice on how to lawfully consume or sell it. Maybe she wants to open a dispensary and needs your help to make sure she complies fully with the state's laws.

What could possibly go wrong? Plenty. You might be committing an ethics violation by helping her.

Starting with Ethics Rules ...

The problem is that marijuana is still prohibited by federal law and (according to ABA Rule 1.2 and many state ethics laws) a lawyer may not counsel or assist a client in conduct the lawyer knows is criminal. Even worse, in some cases, a lawyer has a duty to report intended future criminal conduct.

But Mellow Out, It's 2014

Certainly, the era of marijuana prohibition may be ending. Twenty-one states and the District of Columbia have legalized marijuana to some degree. Last year, Attorney General Eric Holder sent a memo to all United States (DOJ) attorneys with new guidance on marijuana enforcement, directing them to focus on eight areas of enforcement rather than targeting individual users.

None of this changes the fact that marijuana is prohibited by federal law. As the Colorado Supreme Court mentioned, even arranging a lease or negotiating a contract for a dispensary could violate ethics rules.

What's a Lawyer to Do?

The first step is to know the ethics rules in your jurisdiction. In the last few years, many states' ethics commission have issued opinions, including Maine, Arizona, Connecticut and Colorado. Be sure to look at the most recent opinions on this subject -- call your state's ethics hotline if you need to.

In some states, a lawyer's ethical obligations are now clear. Colorado recently clarified the ways in which its lawyers are ethically permitted to advice clients regarding marijuana laws. Colorado lawyers may do the following:

  • Counsel on the validity, scope, and meaning of Colorado marijuana laws,
  • Assist clients in activities reasonably believed to be legal under state and local pot laws, and
  • Advise client on related federal laws and policy regarding pot.

You Might Be on Your Own

Your state might not have such clear rules. At the very minimum, you should make sure clients understand that marijuana is still prohibited under federal law. You might want to put all your advice in writing, so that if the matter comes before a tribunal, you'll have unequivocal evidence as to what you did and did not do.

Other than that, it might be up to you as a lawyer to determine how to advise your clients in such a way that you do not assist them in violating federal law.

Would you ever dare to advise a client on how to comply with state marijuana laws while it's still prohibited by federal law? Join the discussion on Facebook.

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