In an editorial today, the Seattle Times urged restraint for people making assumptions about last year’s landmark marijuana legalization law. One group making no assumptions: lawyers.
The passage of Initiative 502 opened interesting ethics questions for lawyers, especially those serving the new marijuana industry. Can an attorney avoid discipline if they advise a client about breaking federal law? What about one with an ownership stake in a marijuana business? For that matter, can a lawyer personally light it up?
In an advisory opinion in October, the trustees at King County Bar Association, which has been on the forefront of drug reform for a decade, essentially said yes to all three. That’s important, because lawyers take an oath to uphold state and federal law. And ethics violations can cost a lawyer their license.
But, since we’re talking about a bunch of lawyers, the 14,000-member KCBA wanted the issue crystal clear, so they asked the state Supreme Court to amend the Rules of Professional Conduct.
The court quickly took up the challenge and asked for advice from the Washington State Bar Association, which handles discipline (disclosure: my wife is a WSBA disciplinary counsel).
The short answer from the chief disciplinary counsel, Doug Ende: it’s still illegal , but the bar has no intention of pursuing it. As proof, Ende notes a lack of discipline against lawyers who’ve advised medical marijuana dispensaries (which aren’t clearly legal even under state law).
The Office of Disciplinary Counsel has not disciplined and does not intend to discipline lawyers who in good faith advise or assist clients or personally engage in conduct that is in strict compliance with I-502 and its implementing regulations.
That should settle it, right? Nope. The KCBA cited Connecticut and Maine ethics opinions concluding that lawyers couldn’t advise clients how to break the federal Controlled Substances Act. Ende’s letter suggests attorneys could be subject to discipline for getting involved in I-502, but the bar will “look the other way,” wrote KCBA president Anne Daly. Here’s a link to the whole back-and-forth via the KCBA site.
The Supreme Court is on a fast-track to consider the issue, asking for formal comments from the WSBA in January. The stake is big: if the Supreme Court decides federal law trumps I-502, the lawyers advising the booming marijuana industry may suddenly be operating in jeopardy- however remote, as Ende suggests – of losing their licenses.
Washington isn’t alone. The bar association in Colorado, our sister in the legalization experiment, is also wrestling with this. Its recommendation to the Colorado Supreme Court is to “insulate” attorneys from discipline for marijuana-related advice and use.