Bringing it Home: Attorneys can work with marijuana clients
March 30, 2014
Editor's note: "Bringing It Home" runs weekends in The Aspen Times and focuses on state, national and international issues that have ties to or impacts the Roaring Fork Valley.
The Colorado Supreme Court approved a new rule that will give Colorado attorneys the opportunity to work with state marijuana businesses without crossing an ethical line that could have potentially jeopardized their careers.
The Colorado Supreme Court announced Monday that it adopted a comment to the Colorado Rules of Professional Conduct that allows Colorado lawyers to provide legal services to state-sanctioned recreational and medical marijuana businesses.
The Colorado Rules of Professional Conduct prohibit attorneys from working with clients in any type of illegal activities, raising issues and questions about working with businesses associated with medical or recreational pot. Marijuana remains illegal under federal law.
The comment states that a lawyer "may counsel a client regarding the validity, scope and meaning" of Colorado's state marijuana laws in Article XVIII, Sections 14 and 16, of the Colorado Constitution "and 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. In these circumstances, the lawyer shall also advise the client regarding related federal law and policy."
The comment was amended and adopted, effective immediately. Justices Nathan Coats and Allison Eid would not approve the comment. Chief Justice Nancy Rice signed the addition.
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"The rule interpretation gives lawyers the green light to work with clients engaged in dealing with marijuana laws, like me," said Pitkin County attorney John Ely. "It is a recognition that the area is complicated and citizens working with the state framework should be able to have the benefit of legal counsel."
The comment added this week comes in direct response to the state bar association, which sought clarity for members who assist clients in the medical or recreational marijuana business. The Colorado Supreme Court held a public hearing on the rule change earlier in March.
Jessie Miller is a co-owner of Leaf, a medical marijuana outlet in Aspen that hopes to secure its recreational license by June. Miller said he sees the new rules helping future states move forward with their attempts to legalize recreational marijuana sales or introduce medical marijuana sales.
"As a state, we're breaking ground for the nation," Miller said. "This law will help other states trying to move towards medical or recreational usage and puts them that much further ahead. They'll know from day one they can approach a lawyer, where we had to wait about a year and a half before we could talk to one legally."
Aspen attorney Jody Edwards has worked on a few cases locally involving marijuana issues. Edwards sees several positives for local marijuana businesses with the addition of the comments to the Colorado Rules of Professional Conduct.
"The (marijuana) industry is heavily regulated and will only succeed if growers/retailers strictly comply with the extensive rules promulgated in the wake of Amendment 64 and local laws governing the retail marijuana industry," Edwards said. "By permitting attorneys to assist merchants in navigating these new rules and laws, it enhances the likelihood that this new industry will thrive in a manner consistent with the intent of Colorado voters and lawmakers."
Edwards said that by discouraging lawyers from representing marijuana growers and retailers, the prior rule had the possible effect of making it difficult for them to obtain good legal advice. Now, lawyers are unambiguously permitted to represent growers and retailers, and that will help to enable the industry to operate within the law.
The one area lawyers will need to exercise caution with is the final provision in the new rules that requires them to advise their clients of both state and federal law and policy.
"Lawyers practicing in this area must stay abreast of changes to both sets of laws, which presently differ considerably," Edwards said. "Also, lawyers who are licensed in multiple states or whose firms have offices in multiple states should ensure that their permitted representation of marijuana retailers in Colorado will not jeopardize their adherence to the lawyers' ethical rules of those other states."