RULE CHANGE 2014(05)
Colorado Rules of Professional Conduct
Rule 1.2. Scope of Representation and Allocation of Authority Between Client and Lawyer
Comment:
[14l 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.
Amended and Adopted by the Court, En Banc, March 24,2014, effective immediately.
Late last year, the Colorado Bar Association's Ethics Committee issued an opinion that said lawyers might be in jeopardy for helping marijuana businesses, even for providing assistance with leases, contracts and investors.
[T]he Committee concludes that the plain language of Colo.RPC 1.2(d) prohibits lawyers from assisting clients in structuring or implementing transactions which by themselves violate federal law. A lawyer cannot comply with Colo.RPC 1.2(d) and, for example, draft or negotiate (1) contracts to facilitate the purchase and sale of marijuana or (2) leases for properties or facilities, or contracts for resources or supplies, that clients intend to use to cultivate, manufacture, distribute, or sell marijuana, even though such transactions comply with Colorado law, and even though the law or the transaction may be so complex that a lawyer’s assistance would be useful, because the lawyer would be assisting the client in conduct that the lawyer knows is criminal under federal law.
Similarly, a lawyer cannot under Colo.RPC 1.2(d) represent the lessor or supplier in such a transaction if the lawyer knows the client’s intended use of the property, facilities, or supplies, as such actions are likely to constitute aiding and abetting the violation of or conspiracy to violate federal law.
...The plain language of Colo.RPC 1.2(d) prohibits Colorado lawyers from counseling a client to engage, or assist a client, in conduct that the lawyer knows to be criminal. Certain client conduct may now be legal under Amendment 64 and the Medical Marijuana Code but may remain a violation of federal criminal statutes.
...Colorado is one of a handful of states conducting an experiment in democracy: the gradual decriminalizing of marijuana. The Committee notes that, as a consequence of Colo.RPC 1.2(d) as written, Colorado risks conducting this experiment either without the help of its lawyers or by putting its lawyers in jeopardy of violating its rules of professional conduct.
Formal ethics opinions are not binding and do not provide protection against disciplinary actions. The Supreme Court's Standing Standing Committee on the Colorado Rules of Professional Conduct added an addendum to the opinion recommending the Supreme Court modify the rule:
Addendum to Formal Opinion 125— The Extent to Which Lawyers May Represent Clients Regarding Marijuana-Related Activities Adopted October 21, 2013
The Colorado Supreme Court’s Standing Committee on the Colorado Rules of Professional Conduct has recommended that the Colorado Supreme Court adopt marijuana related amendments to the Colorado Rules of Professional Conduct. The proposed amendments would insulate a lawyer from discipline by the Colorado Supreme Court for the lawyer’s personal or medical use of marijuana and for the lawyer’s provision of legal services and advice on marijuana-related conduct. The Colorado Bar Association Ethics Committee supports this recommendation.
With today's new rule, marijuana businesses can now get legal advice. This is a very welcome change.
As far as I can tell, a second proposed rule change in the form of a new Comment [2A] to existing ethics rule 8.4, addressing lawyers' personal use of medical or recreational marijuana, which was heard at the same time as the proposed rule change on marijuana businesses, has not been accepted or rejected. You can listen to the Supreme Court's March 6 public hearing at which both proposals were addressed here. The public comments to the proposed changes are here.
