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American Bar Association

Section of Labor and Employment Law

Ethics and Professional Responsibility Committee

Midwinter Meeting 2015

March 26-28, 2015

LAWYERS & MARIJUANA:

IF IT’S LEGAL, CAN IT BE ETHICAL?

By: Devika Kewalramani, Esq.

Introduction

In recent years, there has been a transformational shift in how marijuana use is perceived

in the United States, which has led to the reshaping of some state laws and professional conduct

rules. Where new state laws legalize marijuana in the face of existing federal law criminalizing

it,1 lawyers and their clients are confronted with questions and dilemmas not encountered before.

Suppose a lawyer lives and practices in a state that has recently legalized the use of marijuana.

The attorney’s initial reaction may be to consider the legal ramifications of such legislation and

its impact on his or her professional life, given that federal law still prohibits the use and

possession of marijuana. The professional considerations the lawyer makes, however,

necessarily implicate his or her ethical obligations as a lawyer. If the bar association in the state

where the lawyer is admitted has not provided guidance on this issue, where should the lawyer

turn for assistance? How will these new laws affect the client’s rights and the lawyer’s role as

advocate and counselor? How far may the lawyer go in advising clients involved in marijuana

2businesses? If the lawyer decides to personally use marijuana (for medical or recreational

purposes), should such use be disclosed to the client or his or her firm? Does the lawyer’s firm,


its lawyers or other lawyers have a duty to report the conduct to the disciplinary authorities? Can

the lawyer still be disciplined for rendering marijuana-related legal advice or for personal use of

marijuana? And, how would the rules of professional conduct on disciplinary authority and

choice of law apply to lawyers admitted in various states, and to lawyers who are associated with

law firms that have multiple offices around the country? Answers to many of these questions are

yet to come.

More than twenty states in the United States have legalized some form of marijuana use.3

Of those, Colorado and Washington (State) have recently decriminalized recreational use of the

drug, with Alaska, Oregon, and the District of Columbia slated to join their ranks in 2015.4

Legal issues are taking center stage in the marijuana legalization discussion, given that many of

these recently enacted state laws are largely inconsistent with federal law. However, since

August 2013, the United States Department of Justice has indicated that it has “defer[ed] its right

to challenge [states’] legalization laws. . . .”5

The legal questions raised by marijuana legalization are complex, and the ethical

implications of counsel’s role with respect to these laws are mostly undefined. Given the state-

by-state rules of professional conduct6 and regulation of lawyer discipline, nation-wide ethical

guidance on marijuana legislation does not exist, at least at present. There is no uniform code of

professional conduct establishing how lawyers may avoid violating state ethics rules while

complying with state marijuana laws (which may, in many instances, conflict with federal laws).

In some states, as legislatures implement laws, bar association ethics committees are keeping

apace with new laws to provide practical and timely guidance to attorneys.7 In this rapidly

changing legal and ethical landscape, lawyers may face considerable challenges in determining

how to comply with their ethical obligations in representing clients.


Marijuana Legalization: Medical vs. Recreational Use

At first, the distinction between “medical” use and “recreational” use of marijuana may

not appear to be relevant from an ethical perspective. Ordinarily, a state’s laws set the standards

that regulate the use, possession and distribution of marijuana. Therefore, ethics issues involving

an attorney’s personal use of marijuana or legal advice to clients regarding marijuana businesses

would presumably arise within that statutory framework. For example, it would appear that the

outcome of an ethical analysis of an attorney’s personal use of marijuana while outside of work

and within the bounds of a state’s marijuana laws, may not necessarily hinge on whether such

use is for medical or recreational purposes. However, for states adopting new marijuana laws,

whether a person uses marijuana for medical or recreational purposes seems to be a key

distinction, and a majority of states that have enacted such legislation have permitted only

medical use of the drug.8

Thus, for attorneys, the question becomes where they can turn for helpful guidance in the

wake of these new and developing laws. Because more state laws address the use of medical

marijuana, there are a greater number of ethics opinions issued by state bar association ethics

committees in the context of medical marijuana legalization. Of these, most of the opinions have

focused on an attorney’s ability to advise clients in compliance with the state’s rules of

professional conduct,9 although some opinions have discussed an attorney’s personal use of

medical marijuana.10

While some states have not yet put marijuana legalization to the voters, consideration of

the ethical ramifications involved is not limited to states that have relaxed their stance on

marijuana use. For example, the ethical impact of the legalization of medical marijuana has

recently been considered by North Dakota, a state that does not legalize the substance.11


Ethical Consequences: Professional vs. Personal Conduct

Many ethics opinions issued by state bar associations addressing the implications of

marijuana legalization appear to provide guidance in the context of an attorney’s professional

engagement with clients. However, some opinions have considered the ethical impact of an

attorney’s personal use of legalized marijuana for either medical or recreational purposes.

1. Professional Conduct: Counseling Clients

As discussed below, the state bar ethics opinions that cover medical marijuana tend to

focus on whether an attorney can comply with the rules of professional conduct while advising a

client involved in medical marijuana-related enterprises or use. In this context, one of the most

frequently implicated ethics rules is a state’s equivalent to Rule 1.2(d) of the American Bar

Association (“ABA”) Model Rules of Professional Conduct (“Model Rules”), which prohibits a

lawyer from advising or assisting their clients to engage in “conduct that the lawyer knows is

criminal or fraudulent,” but permits a lawyer to discuss the “legal consequences” of the proposed

conduct with a client and to “counsel or assist a client … to determine the validity, scope,

meaning or application of the law.”12

Maine

The first jurisdiction in the United States to consider whether an attorney could ethically

counsel a client concerning its marijuana laws was Maine. In Ethics Opinion 199, the Maine

Professional Ethics Commission declined to broadly authorize or prohibit attorneys from

counseling their clients regarding its Medical Marijuana Act.13

Pointing out that marijuana use

remained federally illegal despite the state’s legislation to the contrary, the Commission focused

on Maine Rule of Professional Conduct 1.2(e), which is identical to ABA Model Rule 1.2(d).14

The Commission observed that “the participation in this endeavor by an attorney involves a


significant degree of risk which needs to be carefully evaluated.”15

Quoting Comment [9] to

Maine Rule 1.2, the Commission further noted that “[t]here is a critical distinction between

presenting an analysis of legal aspects of questionable conduct and recommending the means by

which a crime or fraud might be committed with impunity.”16

The Commission declined to

specifically enumerate situations in which an attorney advising a client as to the Medical

Marijuana Act would be deemed to act within the scope of the rule.17

It concluded that when a

client seeks advice regarding newly enacted marijuana laws, whether the attorney may properly

advise the client in compliance with the ethics rules depends on the facts before him or her. The

Commission stated, “[s]o long as both the federal law and the language of the Rule each remain

the same, an attorney needs to perform the analysis required by the Rule and determine whether

the particular service being requested rises to the level of assistance in violating federal law.”18

Arizona

In contrast, in 2011, the State Bar of Arizona issued Ethics Opinion 11-01, which

analyzed the issue under its analogous ethics rule 1.2(d) and the corresponding commentary.19

The Arizona opinion sets forth the following guidelines:

A lawyer may ethically counsel or assist a client in legal matters expressly

permissible under the Arizona Medical Marijuana Act (“Act”), despite the fact

that such conduct potentially may violate applicable federal law. Lawyers may do

so only if: (1) at the time the advice or assistance is provided, no court decisions

have held that the provisions of the Act relating to the client’s proposed course of

conduct are preempted, void or otherwise invalid; (2) the lawyer reasonably

concludes that the client’s activities or proposed activities comply fully with state

law requirements; and (3) the lawyer advises the client regarding possible federal

law implications of the proposed conduct if the lawyer is qualified to do so, or

recommends that the client seek other legal counsel regarding those issues and

appropriately limits the scope of the representation.20

The opinion provides a practical framework within which a lawyer may provide assistance to

clients who seek legal advice on matters involving marijuana legislation.


Connecticut

In 2013, the Connecticut Bar Professional Ethics Committee issued Informal Opinion

2013-02, where the Committee analyzed its then-existing Rule 1.2(d)21

in the context of a

lawyer’s ability to advise, assist and represent clients in connection with the state’s Palliative

Use of Marijuana Act.22

In addition to Rule 1.2(d), the Committee considered Rule 1.4(a)(5)23

which “encourages lawyers to inform clients of the limits of the lawyer’s ability to assist clients”

in circumstances where the client proposes illegal conduct.24

The Committee declined to

“categorize particular factual circumstances that may raise issues of culpability because the

circumstances may be so various as to make the effort valueless.”25

While the Committee did

not provide a clear-cut conclusion, it stated that “lawyers may advise clients of the requirements

of the Connecticut Palliative Use of Marijuana Act. . . . [but] may not assist clients in conduct

that is in violation of criminal law. Lawyers should carefully assess where the line is between

those functions and not cross it.”26

Connecticut has revised its Rule 1.2(d), which became effective as of January 1, 2015.27

Under Connecticut’s new Rule 1.2(d)(3), a lawyer may “counsel or assist a client regarding

conduct expressly permitted by Connecticut law, provided that the lawyer counsels the client

about the legal consequences, under other applicable law, of the client’s proposed course of

conduct.”28

Commentary to Connecticut’s New Rule 1.2(d)(3) specifically states that

“[s]ubsection (d)(3) is intended to permit counsel to provide legal services to clients without

being subject to discipline under these Rules notwithstanding that the services concern conduct

prohibited under federal or other law but expressly permitted under Connecticut law, e.g.,

conduct under An Act Concerning the Palliative Use of Marijuana, Public Act 12-55, effective

Oct. 1, 2012. . . .”29


Colorado

In its Ethics Opinion 125, which was later withdrawn, the Colorado State Bar

Association’s Ethics Committee addressed whether it is ethical for lawyers to advise clients

regarding the state’s marijuana laws, in 2013. There, the Committee analyzed its own Rule

1.2(d)30

and concluded that “a lawyer does not violate [Rule 1.2(d)] by representing a client in

proceedings relating to the client’s past activities; by advising governmental clients regarding the

creation of rules and regulations implementing [Colorado’s laws on marijuana;] . . . by arguing

or lobbying for certain regulations, rules, or standards; or by advising clients regarding the

consequences of marijuana use or commerce under Colorado or federal law.”31

As discussed

further below, Colorado has since amended the commentary to its Rule 1.2 to essentially provide

that a lawyer may counsel a client on state marijuana laws and assist the client in conduct the

lawyer reasonably believes is permitted by such laws, and also advise the client on related

federal law and policy.32

2. Personal Conduct: Private Use of Marijuana

Some state bar association ethics committees that have addressed the ethical issues

involving an attorney’s personal use of marijuana have focused on whether such conduct affects

the lawyer’s ability to effectively represent clients and engage in the practice of law.

Connecticut, North Dakota and Colorado’s state bar association ethics committees have

discussed the ethical implications of an attorney’s personal use of medical marijuana.33

In

addition, the Colorado Office of Attorney Regulation Counsel has opined on an attorney’s use of

marijuana for recreational purposes.34

The ethics rule that most commonly is triggered in these

scenarios is the state equivalent of ABA Model Rule 8.4(b) which provides that it is

“professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the


lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”35

Colorado has

rejected, and Washington has not yet adopted, proposed amendments to the comments to Rule

8.4(b) of their respective rules of professional conduct.36

The proposed comments provided that

while a lawyer may properly engage in personal marijuana use under state marijuana legislation

without violating Rule 8.4(b), such conduct may still violate other state laws, such as

prohibitions on driving while impaired, and other rules of professional conduct, such as the

duties of competence and diligence, which may subject the lawyer to professional discipline.37

For Medical Purposes

In its Opinion 124, issued in 2012, the Colorado Bar Association Ethics Committee

considered whether an attorney could medically use marijuana pursuant to Colorado law and still

comply with Colorado’s ethics rules. The Committee considered Colorado’s Rule 8.4(b), which

is identical to ABA Model Rule 8.4(b).38

The Committee ultimately concluded that “a lawyer’s

medical use of marijuana in compliance with Colorado law does not, in and of itself, violate

Colo. RPC 8.4(b). Rather, to violate Colo. RPC 8.4(b), there must be additional evidence that the

lawyer’s conduct adversely implicates the lawyer’s honesty, trustworthiness, or fitness as a

lawyer in other respects.”39

The opinion noted that marijuana use, in compliance with law, in

and of itself does not negatively impact the lawyer’s honesty or fitness to practice law,40

so long

as the attorney is able to competently represent clients.41

In addition, the Colorado Bar Association Ethics Committee indicated that additional

rules of professional conduct may be implicated if a lawyer’s use of medical marijuana

materially impairs the lawyer’s ability to provide competent representation to a client.42

For

example, the Committee observed that conduct which “can affect a lawyer’s reasoning,

judgment, memory, or other aspects of the lawyer’s physical or mental abilities” may impact a


lawyer’s competence to represent and counsel clients.43

The Committee also noted that another

rule may be implicated:

Colo. RPC 1.16’s prohibition against representing a client when “the lawyer’s

physical or mental condition materially impairs the lawyer’s ability to represent

the client” reflects the position that allowing lawyers who do not possess the

requisite capacity to make professional judgments and/or follow the standards of

ethical conduct harms clients, undermines the integrity of the legal system, and

denigrates the legal profession.44

The Colorado Bar Association Ethics Committee further clarified the connection between

a lawyer’s duty of competent representation and obligation to withdraw. The Committee

explained that where a lawyer’s use of medical marijuana “‘materially impair[s]’ the attorney’s

ability to represent a client[,]” and such conduct prevents the attorney from acting competently in

accordance with Colorado’s Rule 1.1,45

“Colo. RPC 1.16(a)(2) requires the lawyer to withdraw

from the representation and take ‘reasonably practical’ steps to protect the client’s interests.”46

In addition to ethics rules regarding attorney competence and withdrawal, some other

rules may also be set off by an attorney’s use of medical marijuana. For instance, the Colorado

Bar Association Ethics Committee noted that a lawyer’s use of marijuana may prompt another

attorney’s obligation to report the conduct under Colorado Ethics Rule 8.3(a).47

It observed that

if an attorney’s personal marijuana use in compliance with law so impedes his or her

professional performance, and another attorney knows that such use has materially impaired the

using attorney’s professional capabilities, Rule 8.3(a) requires the attorney with knowledge to

report the using attorney’s conduct to an appropriate disciplinary authority.48

The Committee

suggested that the attorney seeking to report another lawyer may first try confronting the using

attorney one-on-one, or reaching out to someone else within the using attorney’s firm or an

approved lawyer assistance program, before fulfilling such reporting obligations.49

Notably, the

Committee pointed out that “behavior such as [the using attorney] frequently missing court


deadlines, failing to make requisite filings, failing to perform tasks agreed to be performed, or

failing to address issues that would be raised by competent counsel may supply the requisite

knowledge that another lawyer is impaired.”50

Like Colorado, the Connecticut Ethics Committee concluded that a lawyer’s use of

medical marijuana in compliance with state laws does not, in itself, give rise to an ethical

violation in its Informal Opinion 2014-08.51

In analyzing the issue, the Connecticut Ethics

Committee expressly focused on Connecticut Rule 8.4(2).52

However, the discussion as to a

lawyer’s use of marijuana has not been limited to states that have legalized some form of

marijuana use. In 2014, North Dakota’s State Bar Association Ethics Committee considered the

ethical ramifications of an attorney’s personal use of medical marijuana, even though, as

discussed above, the state criminalizes marijuana. In its ethics opinion, the subject attorney was

licensed to practice in North Dakota, but desired to move to Minnesota, where medical marijuana

use is legal, to treat his non-terminal illness.53

The Committee found that such multiple

marijuana uses in Minnesota, even if in compliance with Minnesota state law, would violate

North Dakota’s Rule 8.4(b).54

The Committee focused on the fact that the attorney’s marijuana

use, albeit out-of-state, would still violate federal law, and cited a comment to North Dakota

Rule 8.4(b) which says “[a] pattern of repeated offenses, even ones of minor significance when

considered separately, can indicate indifference to legal obligations.”55

The Committee

concluded that such repeated violations of federal law would render the attorney unfit to

practice.56

As discussed below, the practical implications of North Dakota’s ethics opinion may

be significant for a lawyer who may reside and use marijuana for medical reasons in a state that

has adopted marijuana legislation, but who may be licensed to practice and counsel clients in one


or more other states that may not have enacted marijuana laws, or may have laws that are not

consistent with that lawyer’s state of residence and medical marijuana use.

For Recreational Purposes

Both Colorado and Washington had proposed changes to their respective ethics rules,

which were not adopted, to provide that an attorney’s personal use of marijuana in compliance

with state law, in and of itself, could not give rise to an ethics violation.57

The Colorado

Supreme Court held a hearing in 2014 regarding proposed Comment [2A] to Colorado’s Rule

8.4(b), which includes language specifically stating that an attorney’s “‘medical use’ or ‘personal

use’ of marijuana” that complies with Colorado’s constitution and laws “does not reflect

adversely on the lawyer’s honesty, trustworthiness, or fitness in other respects” to practice law.58

Notably, though the Court ultimately rejected the proposal, Colorado subsequently adopted

Comment [14] to its Rule 1.2 which is discussed below.59

In an article published by the ABA in

April 2014, Colorado’s Office of Attorney Regulation Counsel stated that it has taken the

position that, similar to medical marijuana use, a lawyer’s personal marijuana use in compliance

with Colorado law “does not violate ABA Model Rule 8.4(b).”60

However, it noted that

“marijuana use . . . could lead to other rules violations,” even if not a violation of Rule 8.4(b).61

In addition, the Colorado Office of Attorney Regulation Counsel indicated that in particular,

ethics rules related to competence and diligence may be violated where an attorney’s marijuana

use impairs his or her judgment, and warned against engaging in conduct such as driving while

under the influence of marijuana.62

Thus, the jurisdictions addressing personal marijuana use


appear to concur that engaging in such conduct may still render the lawyer unfit to represent

clients for a number of reasons, even if it does not violate ABA Model Rule 8.4(b).

Possible Future State Action

While these ethics opinions have produced some useful guidance for lawyers, some state

bar association ethics committees have taken further action to clarify which attorney conduct is

improper. As previously discussed, Connecticut has amended its Rule 1.2(d) and commentary to

permit lawyers to counsel clients regarding legal activity under the state’s marijuana laws.63

Colorado64

and Washington65

have each adopted comments to its Rule 1.2 which permit lawyers

to counsel clients regarding marijuana enterprises that are legal under state law, while also

advising clients regarding related federal law and policy. As more states seek to legalize

marijuana, it remains to be seen whether they will adopt similar comments to their rules of

professional conduct. The King County Bar Association in Washington66

and Colorado Supreme

Court Standing Committee on the Colorado Rules of Professional Conduct67

had each proposed a

new Rule 8.6 to their rules of professional conduct, which Colorado rejected and Washington has

not yet adopted, to address the conflict between federal law and state law, and to create a safe

harbor for lawyers from violating the rules of professional conduct or being subject to discipline

for engaging in conduct or for counseling or assisting clients to engage in conduct permitted or

within an affirmative defense to prosecution under state criminal law, solely because that same

conduct, standing alone, may violate federal law.68

However, despite changes to commentary and proposed new rules and comments,

attorneys still need to be cautious and should carefully consider the rules of professional conduct


and related ethics opinions (and any case law) in the states where they are licensed to practice

before advising a client on the legal issues involving marijuana businesses.

Issues for Attorneys with Multiple Licenses and/or at Multi-Office Law Firms

Attorneys who are admitted to practice and represent clients in more than one state

should be mindful that the rules of professional conduct and systems of attorney discipline vary

from state to state. This raises the practical dilemma of how a lawyer admitted in multiple states

may comply with marijuana laws and rules of professional conduct in those states, which may or

may not be compatible with each other. Another consideration is how the ethics rules of such

states regarding disciplinary authority and choice of law may interact to apply to the lawyer’s

conduct under the states’ equivalent to ABA Model Rule 8.5.69

The North Dakota ethics opinion70

discussed above illustrates some potential challenges

that an attorney may confront when he or she is licensed and counsels clients in one or more

states, but resides and engages in marijuana use in a different state that may have conflicting, or

no, marijuana laws. The opinion describes a situation in which an attorney could face a potential

ethical violation in a state where he is licensed to practice (North Dakota) but seeks to reside in

another state where marijuana use is legal (Minnesota) and to engage in the personal use of

medical marijuana there. Notably, the North Dakota ethics opinion did not find the Minnesota-

resident, North Dakota-licensed attorney’s conduct to be unethical because it was illegal under

North Dakota law (which it was), but rather because it was illegal under federal law.71

Another issue involves the ethical implications for lawyers associated with multi-office

law firms which may represent clients in marijuana enterprises in one of its offices located in a

state where marijuana is legal, whereas the firm may have other office(s) located in state(s)


where marijuana is illegal (or not yet legal). This scenario raises the question whether such legal

(and assuming, ethical) marijuana-related representation by lawyers in one of the law firm’s

offices could potentially result in an ethical violation by other firm lawyers practicing in the

firm’s other office(s) where the state laws (and ethics opinions addressing them) may prohibit

marijuana. ABA Model Rules 5.1 and 5.2 impose duties on supervisory lawyers and junior

lawyers in a law firm to comply with the rules of professional conduct. In some states, Model

Rule 5.1 (or a variation thereof) specifically imposes such obligations on law firms.

Conclusion

In light of inconsistent federal and state laws, increasing marijuana legalization around

the country has generated a number of ethical concerns regarding a lawyer’s professional

obligations in advising clients in marijuana enterprises and his or her personal behavior

involving private use of marijuana. For example, by what measure is an attorney considered

unfit to advise clients where the conduct may not be “misconduct” under ABA Model Rule

8.4(b), but may nonetheless lead to or constitute some other ethics rules violations? What

conduct involving an attorney’s legal marijuana use demonstrates lack of competence or lack of

diligence in representing clients? When is an attorney’s conduct subject to reporting or

disclosure to a client, opposing parties or opposing counsel, the lawyer’s firm or to disciplinary

authorities? If an attorney holds licenses to practice in multiple states and engages in legal

marijuana-related conduct in another state, how and by which governing body is his or her

conduct to be regulated? And, what are the ethical implications for lawyers at multi-office law

firms that represent clients in marijuana businesses? It appears that there are no bright line rules

or clear ethical guidance on many of these issues. The duty of competence under ABA Model


Rule 1.1 may be implicated where the lawyer’s use of medical marijuana impairs his or her

ability to provide competent representation to the client; the duty of diligence under ABA Model

Rule 1.3 may be triggered if the lawyer’s personal marijuana use impedes his or her ability to act

with reasonable diligence and promptness in representing clients;72

if the lawyer is materially

impaired from such use, ABA Model Rule 1.16(a)(2) requires the lawyer to withdraw from the

representation; and if a duty to report the lawyer’s conduct is established under ABA Model Rule

8.3, there may be additional considerations regarding the duty of confidentiality involving the

disclosure of client information and the need for the client’s informed consent.73

While some

ethical guidance from state bar association ethics committees is available, lawyers still need to

carefully analyze the facts and circumstances of their particular situation in light of the relevant

state laws, applicable ethics rules and commentary, as well as any relevant case law.

Significantly, under ABA Model Rule 5.1,74

lawyers with supervisory or managerial authority

within a law firm, corporate legal department, government agency or any other organization

authorized to practice law, are responsible to make reasonable efforts to assure that the conduct

of other lawyers conform to the Rules of Professional Conduct. In addition, ABA Model Rule

5.275

establishes an independent duty for junior lawyers within an organization to abide by the

Rules of Professional Conduct, regardless of whether they acted at the direction of another

person. Even though there may be some consensus among the states that representing clients in

marijuana businesses or personally using marijuana may not be unethical in and of itself, there

are caveats: a lawyer’s professional and personal conduct could potentially lead to violations of

state laws and/or the rules of professional conduct if the lawyer is unable to provide competent

representation to the client.


Devika Kewalramani, Esq., is a partner at Moses & Singer LLP and co-chair of its Legal Ethics

& Law Firm Practice. She is the Chair of the New York City Bar Association’s Committee on

Professional Discipline. Kristen Peltonen, Esq., is an associate at the firm and assisted with

research and preparation of this article.

* * *

1 21 U.S.C. § 812(c), Schedule 1(c)(10) (2012); 21 U.S.C. § 841(a)-(b) (2010). While marijuana use and possession

remains illegal under federal law, legislators at both the state and federal levels have sought reform. For example, on

March 10, 2015, Senators Cory Booker, Rand Paul and Kirsten Gillibrand introduced new legislation that would

permit the use of medical marijuana under federal law. See

http://www.gillibrand.senate.gov/newsroom/press/release/booker-paul-and-gillibrand-announce-bipartisan-new-

medical-marijuana-bill-to-allow-patients_including-veterans--to-access-necessary-care-without-fear-of-federal-

prosecution (last visited Mar. 11, 2015). 2 See State Marijuana Laws Map, GOVERNING.COM, http://www.governing.com/gov-data/state-marijuana-laws-map-

medical-recreational.html (last visited Mar. 9, 2015). As of March 9, 2015, the GOVERNING.COM website indicated

that information was current as of Feb. 24, 2015. 3 See State Marijuana Laws Map, GOVERNING.COM, http://www.governing.com/gov-data/state-marijuana-laws-map-

medical-recreational.html (last visited Mar. 9, 2015). As of March 9, 2015, the GOVERNING.COM website indicated

that information was current as of Feb. 24, 2015. 4

Id.; see Alaska Ballot Measure 2 (passed by vote Nov. 4, 2014), available at

http://www.elections.alaska.gov/doc/bml/BM2-13PSUM-ballot-language.pdf; Or. Measure 91 (passed by vote Nov.

4, 2014), available at http://www.oregon.gov/olcc/marijuana/Documents/Measure91.pdf; D.C. Ballot Initiative

Measure 71 (passed by vote Nov. 4, 2014), available at https://www.dcboee.org/pdf_files/nr_1627.pdf. 5 Press Release, Department of Justice, Justice Department Announces Update to Marijuana Enforcement Policy

(August 29, 2013) (available at: http://www.justice.gov/opa/pr/justice-department-announces-update-marijuana-

enforcement-policy); see Memorandum from Deputy Attorney General James M. Cole to All United States

Attorneys (August 29, 2013)

(available at: http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf). 6 Most jurisdictions have enacted the American Bar Association Model Rules of Professional Conduct or a variation

of those rules. 7 Conflicting State and Federal Marijuana Laws Create Ethical Complications for Lawyers, April 24, 2014,

AMERICAN BAR ASSOCIATION (http://www.americanbar.org/publications/youraba/2014/april-2014/conflicting-state-

and-federal-marijuana-laws-create-ethical-comp.html) (last visited Mar. 9, 2015). 8 See, e.g., Gen. Statutes of Conn. Title 21a Chapter 420f § 21a-408 – 21a-429 (2012, Revised 2013); Ariz. Revised

Statutes, Title 36 Chapter 28.1 §§ 36-2801 – 36-2819 (2010); Me. Revised Statutes, Medical Use of Marijuana Act,

Title 22 Chapter 558-C §2421 – 2430-B (2009). 9 See, e.g., Ill. State Bar Ass’n Prof. Conduct Advisory Op. No. 14-07 (2014); N.Y. State Bar Ass’n Ethics Op. 1024

(2014); Conn. Bar Ass’n Prof’l Ethics Comm., Informal Op. 2013-02 (2013); State Bar of Ariz. Ethics Op. 11-01

(2011); Me. Prof’l Ethics Comm’n Op. 199 (2010). 10

See Colo. Bar Ass’n Ethics Comm. Formal Op. 124 (2012); Conn. Bar Ass’n Prof’l Ethics Comm., Informal Op.

2014-08 (2014); State Bar Ass’n of N.D. Ethics Comm. Op. No. 14-02 (2014). 11

N.D. Op. 14-02 (2014). 12

MODEL RULES OF PROF’L CONDUCT R. 1.2(d) (“A lawyer shall not counsel a client to engage, or assist a client, in

conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any

proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine

the validity, scope, meaning or application of the law.”). 13

Me. Op. 199 (2010).

http://www.americanbar.org/publications/youraba/2014/april-2014/conflicting-state-and-federal-marijuana-laws-create-ethical-comp.html

http://www.americanbar.org/publications/youraba/2014/april-2014/conflicting-state-and-federal-marijuana-laws-create-ethical-comp.html


14

See ME. R. PROF’L CONDUCT R. 1.2(e); MODEL RULES OF PROF’L CONDUCT R.1.2(d). 15

Me. Op. 199 at 2. 16

Id. 17

Id. (“Where the line is drawn between permitted and forbidden activities needs to be evaluated on a case by case

basis.”). 18

Id. 19

Arizona Ethics Rule 1.2(d) is identical to ABA Model Rule 1.2(d). See MODEL RULES OF PROF’L CONDUCT R.

1.2(d); ME. RULES OF PROF’L CONDUCT R. 1.2(e); ARIZ. RULES OF PROF’L CONDUCT R. 1.2(d). Comment 10 to

Arizona R. 1.2 contains the same language as Maine’s Comment [9] – “There is a critical distinction between

presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or

fraud might be committed with impunity.” ARIZ. RULES OF PROF’L CONDUCT R. 1.2(d), cmt. [10]. 20

Ariz. Op. 11-01 at 1. 21

At the time Opinion 2013-02 was written, the Connecticut rule was identical to ABA Model Rule 1.2(d). See

MODEL RULES OF PROF’L CONDUCT R. 1.2(d). Connecticut’s Rule 1.2(d) has since been amended. See CONN. RULES

OF PROF’L CONDUCT R. 1.2(d), effective as of January 1, 2015. 22

Conn. Op. 2013-02 at 1. 23

Connecticut Rule 1.4(a)(5) is identical to ABA Model Rule 1.4(a)(5), which states: “A lawyer shall . . . consult

with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects

assistance not permitted by the Rules of Professional Conduct or other law.” MODEL RULES OF PROF’L CONDUCT R.

1.4 (a)(5); CONN. RULES OF PROF’L CONDUCT R. 1.4(a)(5). 24

Conn. Op. 2013-02 at 2. 25

Id. at 3. 26

Id. at 3-4. 27

See CONN. RULES OF PROF’L CONDUCT R. 1.2(d), effective as of January 1, 2015. 28

Id.

29

Id. [commentary]. 30

Colo. Op. 125. Colorado’s Rule 1.2(d) is identical to ABA Model Rule 1.2(d). See MODEL RULES OF PROF’L

CONDUCT R. 1.2(d); COLO. RULES OF PROF’L CONDUCT R. 1.2(d). 31

Colo. Op. 125 at 2. 32

See COLO. RULES OF PROF’L CONDUCT R. 1.2(d), cmt. [14] (amended and adopted by the Colorado Supreme Court

in Rule Change 2014(05), effective as of Mar. 24, 2014). 33

See supra n. 9. 34

As discussed above, North Dakota still criminalizes marijuana use. Colorado has legalized individual and

recreational use of marijuana. See N.D. Uniform Controlled Substances Act, N.D. Cen. Code Title 19 Chapter 03.1-

01 – 03.1-46 (1997); N.D. Op. 14-02; Colo. Const. art. XVIII, § 14 “Medical Use of Marijuana for Persons

Suffering from Debilitating Medical Conditions,” § 16 “Personal Use and Regulation of Marijuana (Recreational);

Colo. Op. 124 (2012); and Colo. Op. 125 (2013);” see also ABA article, supra n. 6. 35

MODEL RULES OF PROF’L CONDUCT R. 8.4(b). 36

Recreational use of marijuana has recently been legalized in both Colorado and Washington. In November 2014,

Alaska, Oregon, and the District of Columbia passed ballot measures that will legalize the recreational use of

marijuana as early as January 2015. See State Marijuana Laws Map and Ballot Measures, supra, n. 2-3. All three

jurisdictions have already legalized the use of medical marijuana. See D.C. Legalization of Marijuana for Medical

Treatment Act of 2010 (D.C. Law 13-315; 57 DCR 3360); Alaska Statutes 17.37.010, et al. (1999); Or. Revised

Statutes Medical Marijuana Act, Chapter 475, §§ 475.300 – 475.346 (1998). 37

See COLO. RULES OF PROF’L CONDUCT R. 8.4, proposed cmt. [2A] (“A lawyer’s ‘medical use’ or ‘personal use’ of

marijuana that, by virtue of any of the following provisions of the Colorado Constitution, is either permitted or

within an affirmative defense to prosecution under state criminal law, and which is in compliance with legislation or

regulations implementing such provisions, does not reflect adversely on the lawyer’s honesty, trustworthiness,

or fitness in other respects, solely because that same conduct, standing alone, may violate federal criminal law

. . . [citing Colo. Const., art. XVIII, §§ 14 (“Medical Use of Marijuana for Persons Suffering from Debilitating

Medical Conditions”), 16 (“Personal Use and Regulation of Marijuana (Recreational))”] (emphasis added)). See also

WASH. RULES OF PROF’L CONDUCT R. 8.4, proposed cmt. [7] (“[C]onduct of a lawyer that by virtue of a specific

provision of Washington state law and implementing regulations is either (a) permitted, or (b) within an affirmative

defense to prosecution under state criminal law, does not reflect adversely on the lawyer’s honesty, trustworthiness,


or fitness in other respects, solely because that same conduct, standing alone, may violate federal law. . . . The

phrase ‘standing alone’ clarifies that a lawyer’s use of marijuana, while itself permitted under state law, may cause a

lawyer to violate other state laws, such as prohibitions upon driving while impaired, and other rules, such as the

lawyer’s duties of competence and diligence, which may subject the lawyer to discipline.”). Colorado has rejected

the proposed comments to Rule 8.4 and Washington has not yet adopted them. 38

See COLO. RULES OF PROF’L CONDUCT R. 8.4(b); MODEL RULES OF PROF’L CONDUCT R. 8.4(b). 39

Colo. Op. 124 at 2. 40

Colorado’s proposed comment [2A] to Rule 8.4 contained language supporting this point. See supra n. 36. 41

Colo. Op. 124 at 5-6. 42

Id. See COLO. RULES OF PROF’L CONDUCT R. 1.1 [competence]; R. 1.16(a)(2) [withdrawal required if attorney’s

marijuana use materially impairs ability to represent the client]. Colorado’s Rule 1.1 and 1.16 are identical to the

ABA Model Rules. See MODEL RULES OF PROF’L CONDUCT R. 1.1 (“A lawyer shall provide competent

representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and

preparation reasonably necessary for the representation.”); MODEL RULES OF PROF’L CONDUCT R. 1.16(a)(2) (“… a

lawyer … shall withdraw from the representation of a client if . . . the lawyer’s physical or mental condition

materially impairs the lawyer’s ability to represent the client”). 43

Colo. Op. 124 at 1, 5. 44

Colo. Op. 124 at 5-6; see COLO. RULES OF PROF’L CONDUCT R. 1.16 [declining or terminating representation]. 45

Colo. Op. 124 at 5-6; see COLO. RULES OF PROF’L CONDUCT R. 1.1 [competence]. 46

Colo. Op. 124 at 5-6; see COLO. RULES OF PROF’L CONDUCT R. 1.16 [declining or terminating representation]. 47

COLO. RULES OF PROF’L CONDUCT R. 8.3(a). Colorado’s Rule 8.3(a) is identical to ABA Model Rule 8.3(a). See

MODEL RULES OF PROF’L CONDUCT R. 8.3(a) (“A lawyer who knows that another lawyer has committed a violation

of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or

fitness as a lawyer in other respects, shall inform the appropriate professional authority.”). 48

Colo. Op. 124 at 6-7. 49

Id. 50

Id. at 7. 51

Conn. Op. 2014-08. 52

Id. at 2. Connecticut’s existing Rule 8.4(2) contains the same language as ABA Model Rule 8.4(b). See CONN.

RULES OF PROF’L CONDUCT R. 8.4(2); MODEL RULES OF PROF’L CONDUCT R. 8.4(b). 53

N.D. Op.14-02 at 1. It should be noted that the North Dakota opinion did not clarify whether the attorney was

also licensed to practice law in Minnesota. 54

Id. at 2-3. North Dakota’s Rule 8.4(b) is the same as ABA Model Rule 8.4(b). See MODEL RULES OF PROF’L

CONDUCT R. 8.4(b); N.D. RULES OF PROF’L CONDUCT R. 8.4(b). 55

N.D. RULES OF PROF’L CONDUCT R. 8.4(b), cmt. [2]. 56

N.D. Op. 14-02 at 2. 57

See COLO. RULES OF PROF’L CONDUCT R. 8.4, proposed cmt. [2A] and WASH. RULES OF PROF’L CONDUCT R. 8.4,

proposed cmt. [7], supra n. 36; see also WASH. RULES OF PROF’L CONDUCT PROPOSED R. 8.6 and commentary;

COLO. RULES OF PROF’L CONDUCT PROPOSED R. 8.6. 58

See COLO. RULES OF PROF’L CONDUCT R. 8.4 proposed cmt. [2A] supra n. 36. 59

See COLO. RULES OF PROF’L CONDUCT R. 1.2 cmt. [14]. 60

See ABA article, supra n. 6. 61

See id.; Colo. Op. 124. 62

See ABA article, supra n. 6 (“‘You can’t go to court stoned and represent somebody because that reflects on your

competence . . . . Also, if your use of marijuana impedes your ability to represent somebody diligently, then [the

Office is] concerned about that.’”). See also MODEL RULES OF PROF’L CONDUCT R. 1.1 [competence], R. 1.3

[diligence]. 63

See CONN. RULES OF PROF’L CONDUCT R. 1.2(d) and commentary, supra n. 26, 28. 64

See COLO. RULES OF PROF’L CONDUCT R. 1.2, cmt. [14] (amended and adopted by the Colorado Supreme Court in

Rule Change 2014(05), effective as of Mar. 24, 2014) (“A lawyer may counsel a client regarding the validity, scope,

and meaning of Colorado constitution article XVIII, secs. 14 & 16, 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 or local provisions implementing them. In these circumstances, the lawyer shall also advise the client

regarding related federal law and policy.”), available at:


http://www.courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Rule_Changes/2014/2014(05)%20redli

ned.pdf. 65

See WASH. RULES OF PROF’L CONDUCT R. 1.2, cmt. [18] (“At least until there is a change in federal enforcement

policy, a lawyer may counsel a client regarding the validity, scope and meaning of Washington Initiative 502 (Laws

of 2013, ch. 3) and may assist a client in conduct that the lawyer reasonably believes is permitted by this statute and

the other statutes, regulations, orders, and other state and local provisions implementing them.”) 66

See WASH. RULES OF PROF’L CONDUCT PROPOSED R. 8.6 (“Notwithstanding any other provisions of these rules, a

lawyer shall not be in violation of these rules or subject to discipline for engaging in conduct, or for counseling or

assisting a client to engage in conduct, that by virtue of a specific provision of Washington state law and

implementing regulations is either (a) permitted, or (b) within an affirmative defense to prosecution under state

criminal law, solely because that same conduct, standing alone, may violate federal law.”); see also WASH. RULES

OF PROF’L CONDUCT NEW R. 8.6, cmts. [1-2] (stating that New Rule 8.6 “specifically addresses Washington State

Initiative Measure No. 502, approved by the voters on November 6, 2012,” and providing further explanation

regarding the phrase “standing alone”). To date, Proposed Rule 8.6 has not yet been adopted. 67

COLO. RULES OF PROF’L CONDUCT PROPOSED R. 8.6 (“Notwithstanding any other provision of these rules, a

lawyer shall not be in violation of these rules or subject to discipline for counseling or assisting a client to engage in

conduct that, by virtue of (1) Article XVIII, Miscellaneous, Section 14, Medical use of marijuana for persons

suffering from debilitating medical conditions, or (2) Article SVIII, Miscellaneous, Section 16, Personal use and

regulation of marijuana, the lawyer reasonably believes to be either permitted or within an affirmative defense to

prosecution under state criminal law, and which the lawyer reasonably believes is in compliance with legislation or

regulations implementing such provisions solely because that same conduct, standing alone, may violate federal

criminal law.”). Proposed Rule 8.6 was rejected by the Colorado Supreme Court. 68

See Proposed Rule 8.6 for Washington and Colorado, supra n. 65 and n. 66.

69

MODEL RULES OF PROF’L CONDUCT R. 8.5(a) (“[a] lawyer admitted to practice in this jurisdiction is subject to the

disciplinary authority of this jurisdiction, regardless of where the lawyer's conduct occurs. A lawyer not admitted in

this jurisdiction is also subject to the disciplinary authority of this jurisdiction if the lawyer provides or offers to

provide any legal services in this jurisdiction. A lawyer may be subject to the disciplinary authority of both this

jurisdiction and another jurisdiction for the same conduct.”); MODEL RULES OF PROF’L CONDUCT R. 8.5(b)(1) (“In

any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be applied shall be

as follows: (1) for conduct in connection with a matter pending before a tribunal, the rules of the jurisdiction in

which the tribunal sits, unless the rules of the tribunal provide otherwise . . . .”); MODEL RULES OF PROF’L CONDUCT

R. 8.5(b)(2) (“In any exercise of the disciplinary authority of this jurisdiction, the rules of professional conduct to be

applied shall be as follows: … (2) for any other conduct [not in connection with a matter pending before a tribunal],

the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the predominant effect of the conduct is in

a different jurisdiction, the rules of that jurisdiction shall be applied to the conduct. A lawyer shall not be subject to

discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the lawyer reasonably believes the

predominant effect of the lawyer’s conduct will occur.”). 70

See N.D. Op. 14-02. 71

Id. 72

See MODEL RULES OF PROF’L CONDUCT R. 1.3 (“A lawyer shall act with reasonable diligence and promptness in

representing a client.”). 73

See MODEL RULES OF PROF’L CONDUCT R. 1.6(a) (“A lawyer shall not reveal information relating to the

representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to

carry out the representation or the disclosure is permitted by paragraph (b).”). See MODEL RULES OF PROF’L

CONDUCT R. 1.0(e) (“Informed consent denotes the agreement by a person to a proposed course of conduct after the

lawyer has communicated adequate information and explanation about the material risks of and reasonably available

alternatives to the proposed course of conduct.”). 74

See MODEL RULES OF PROF’L CONDUCT R. 5.1(a) (“A partner in a law firm, and a lawyer … with … managerial

authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable

assurance that all lawyers in the firm conform to the Rules of Professional Conduct.”). 75

See MODEL RULES OF PROF’L CONDUCT R. 5.2 (a) (“A lawyer is bound by the Rules of Professional Conduct

notwithstanding that the lawyer acted at the direction of another person.”).


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