Marijuana: Are attorneys who deal with pot violating professional ethics?

Categories: Marijuana

marijuana.in.bong.205x205.jpg
Are attorneys who work with marijuana businesses violating professional ethics by assisting folks whose actions are legal in Colorado but break federal law? According to the Colorado Bar Association, the answer is: Not always, but often. This conclusion concerns Warren Edson, an attorney who specializes in weed-related matters. But he believes it should also worry other lawyers whose actions appear to fall short of the CBA's standards, including the governor who signed the medical marijuana regulatory bill into law.

Questions involving marijuana and attorney ethics aren't new. We published an interview with DU professor Sam Kamin on the topic of potential oath-breaking back in January 2012.

At the time, Kamin told us that the conflict between the responsibility to uphold federal law while helping Coloradans navigate state rules "really puts lawyers in a difficult spot -- and even state regulators are facilitating criminal conduct. When they give someone a certificate saying, 'You can sell all the marijuana you want from your storefront,' you're helping that individual violate federal law."

Kamin isn't the only person in the legal profession to have taken note of this conflict over the years. Edson points out that he and his colleagues have been debating the matter since at least the year 2000, when Colorado voters approved Amendment 20, which legalized medical marijuana in the state.

But with recreational marijuana sales slated to get underway on January 1, the Colorado Bar Association has tackled the subject in detail in the December edition of The Colorado Lawyer, the CBA's regular publication.

sam.kamin.jpg
Sam Kamin.
The issue features "Formal Opinion 125," subtitled, "The Extent to Which Lawyers May Represent Clients Regarding Marijuana-Related Activities." Formally adapted in October, the opinion expands on an earlier determination that an attorney who uses medical marijuana isn't necessarily violating professional ethics by doing so. But in this case, the matter involves whether working with a pot client conflicts with a mandate in the Colorado Rules of Professional Conduct stating that "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal...."

The piece notes that "federal law treats the cultivation, possession, sale and use of marijuana for any purpose, even a medical one, as a crime," while Colorado statutes view weed in a very different way. As such, what's termed a "bright line distinction between lawyer conduct that complies" with the rule "and lawyer conduct that violates it" is difficult to draw. But the committee behind the opinion ultimately determines that lawyers who advise clients about past conduct, zoning and regulations and the use of pot before, during and after exercising their parental rights are in the clear.

In contrast, the committee concludes that the code "prohibits lawyers from assisting clients in structuring or implementing transactions which by themselves violate federal law," such as drafting or negotiating "contracts to facilitate the purchase and sale of marijuana or...leases for properties or facilities, or contracts for resources or supplies, that clients intend to use to cultivate, manufacture, distribute, or sell marijuana."

This remains true, the committee holds, "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." Likewise, a lawyer would violate the rules by representing "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." And that's not to mention a significant gray area, where even the committee doesn't seem certain whether actions are okay or not.

Edson's take?

Continue for our interview with Warren Edson about possible professional ethics violations by attorneys dealing with marijuana-related assignments.



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74 comments
Deft
Deft

 If you were a lawyer and helped a runaway slave get papers up north a few generations ago would that be unethical? 


If you did the same for a family with a child suffering from epilepsy, moving to CO today so they would not fear cops coming to take their kid from them and them to prison.   


There is an involuntary lack of all freedom, and break up of families in both cases...  One could argue there is a choice today, but with your kid in the mix... is there?

andyschm
andyschm

It would be ludicrous for the Colorado Supreme Court to change the ethics rule unless the federal law changes. There are two problems.  First the pendulum on marijuana liberalization could swing back the other way with a republican president and the attorneys could be thrown in prison for conspiracy to distribute marijuana for setting up the dispensaries right now.  From the point of view of the federal statute (not enforcement priorities) there is no difference between setting up a marijuana store and a meth store.  Second I would be quite surprised if there isn't already a situation where a lawyer helped set up a dispensary and it turns out the owners without telling the lawyer are laundering money from cocaine sales through the cash heavy business.  the Feds will prosecute for the marijuana distribution conspiracy and suddenly the lawyer is going to be forced to testify against his clients for a reduced sentence.  they can even wiretap his phone.  We as a bar should not permit either of these risks.  

2Lbeatfromstudyin
2Lbeatfromstudyin

As a law student, I have the privilege of studying the American Bar Association's Model Rules of Ethics  for a full semester and there appears to be an argument that what Colorado "Pot" attorneys are doing maybe ethical. According to the ABA Model Rules of Professional Conduct 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." Because this really is a conflict of law question between Colorado State Law and Federal Law, I believe this situation is one that 1.2(d) covers. The validity, scope, meaning and application of the Colorado law legalizing recreational use of marijuana is still very much in flux. To my knowledge the state law has almost no case law interpreting it. Further, Comment 12 to Rule 1.2 states, "The last clause of paragraph (d) recognizes that determining the validity or interpretation of a statute or regulation may require a course of action involving disobedience of the statute or regulation or of the interpretation placed upon it by governmental authorities." It is my opinion that a Colorado attorney could reasonably rely on this comment and rule to protect themselves from a possible ethical violation. 

Mitchell
Mitchell

Mason Tvert is all up-in-arms about wanting to smoke weed on his front porch. Yet, there is no outrage whatsoever to impending takeover of recreational marijuana market by the New Marijuana Mafia. The 70/30 rule (aka "vertical integration") and endless unworkable regulations have created a situation where very few people will be running Mason's Pot Surveillance Shops, essentially, creating a new Mafia or Marijuana Mob that controls the entire industry for the benefit of the few. If A64 was really supposed to be modeled after alcohol laws, then why are the new Pot Surveillance Shops owners allowed to own multiple stores?  In Colorado, chain stores for liquor retail are not allowed. But for marijuana under the A64 model, large chain stores are encouraged, creating a new "legal" mafia or cartel.  Why does Mason think this is a good idea?

Why isn't Mason outraged by the constant surveillance state that is being set up to track, count and weigh every speck of cannabis from seed to sale, and then to jail, with Radio Frequency tracking technology. Marijuana is set to become the most tracked substance ever on the planet. Yet, Mason Tvert just wants to sit on his porch in Denver and smoke a joint. The war is over for Mason. He "legalized it" and now he just wants to kick back and watch everyone under 21, and everyone with more than one ounce or seven plants, continue to be harassed for weed. I guess since he "ended prohibition" (his words), he can sit back and relax now. The only important thing is being able to smoke a joint on your balcony.

Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

     **** Disbar the Unethical Law-breaking Self-serving Shysters !! ****

*** Disgorge ALL the Fees they received from their malpractice of Law !! ***

Clean up that festering cesspool known as the Colorado Bar Association !!


.

Violeta Luz
Violeta Luz

Bwaaaa Haaa haa an attorney with ethics hilarious!

archibold
archibold

Pathetic. No mention of the ethics violation of the Federal government themselves who contradict themselves, not just by circumventing state law, but by holding two opposite positions on cannabis as medicine. They class it as schedule 1 and claim it has not medical benefit while they hold a patent for medical use of cannabis, 6630507, and approve patented cannabis drugs like Marinol and Sativex. I still don't understand how the US government, along with so many other governments and authorities, are allowed to hold two contradicting positions on the same subject. They say cannabis is not medicine when they wanna jail people for growing and using it, and then say it is medicine when they wanna patent it or approve patented versions of it. Retarded, insane, ridiculous and disgusting are just some of the words suitable to describe this situation.

Clarence
Clarence

It's pretty simple.  If something is illegal under any law of the United States, it's illegal.  Regardless of what state laws allow.  If you lawyers want to become "businessmen" and violate Federal law, resign your license and have at it.  Or get disbarred.  It's your choice.  Edson presumes that most people in "the business" are stupid and NEED lawyers to read their contracts for them.  Let the free market decide.  High risk, high reward.  And "in over your head" means five to ten in a Federal pen.

Shawn Zerokewl Dixon
Shawn Zerokewl Dixon

In addition, should an Arapahoe County judge, who lost her own daughter to a drunk driver, be allowed to preside of DUI cases in which she gets to sentence the guilty to her privately owned jail? Not only is she emotionally compromised but she profits off of their incarceration. Totally ethical right?

Pam Stiffler
Pam Stiffler

Just how is that unethical? Do lawyers even have ethics?

Val Weitz
Val Weitz

Is it ethical to possibly force an industry in this state to exist with out legal representation? I'm sure this will make big bad marijuana go away. Are the federal drug laws ethical? Where does federal law supersede state law? This is a state constitutional amendment, not a just a law.

Ryan Lusby
Ryan Lusby

to everyone who thinks this is stupid. Let us remember that if they don't post this, It could be another photo gallery of Juggalo girls from Detroit!!

DonkeyHotay
DonkeyHotay topcommenter

@Deft " If you were a lawyer and helped a runaway slave get papers up north a few generations ago would that be unethical? "


If they charged $325 / hour to do it, and took a financial interest in the businesses of profiteering slave smugglers who were so greedy they were charging Big $$ for running the underground railroad, like the Mexican coyotes who smuggle poor people across the US border ... then YES, it would be as Unethical and Illegal as those corrupt amoral profiteering Marijuana McShysters.


Hope that helps.

DonkeyHotay
DonkeyHotay topcommenter

@andyschm " From the point of view of the federal statute (not enforcement priorities) there is no difference between setting up a marijuana store and a meth store. "

Exactly.

Which means if the self-serving Ethics Committee is going to pander to the few unethical corrupt lawyer-criminals who willfully and deliberately violated the RPC, they might as well just declare that any lawyer can ignore and violate any Federal Law they find an inconvenient obstacle to their own personal pecuniary gain -- which is what criminals do anyway.

That the CBA even considered countenancing such a depraved amoral position merely reinforces the well deserved low public opinion the legal profession suffers.

DonkeyHotay
DonkeyHotay topcommenter

@2Lbeatfromstudyin .. there is nothing in the Colorado RPC that allows an attorney to advise, assist, aid and abet the clear criminal conduct -- deliberate and willful violations of numerous Federal Criminal Drug and Money Laundering codes -- that marijuana dispensaries engage in on a daily, continuing basis.

Your novice opinion -- in light of the reality of the CO Bar Ethics Committee's determination to the contrary -- would get you a D- on your next exam ... or disbarred if you were a practicing attorney.

Lawyers do NOT get to pick and choose which Federal Criminal Laws they willfully violate, nor can they advise, assist, aid and abet their criminal clients continuous deliberate violations of same.

The ONLY ethical and lawful advice an honest attorney could give a client under your proposed "make a good faith effort to determine the validity, scope, meaning or application of the lawis;

1) Operating a marijuana dispensary is in direct violation of numerous Federal Felony Criminal codes, 

2) Don't do it.

3) I can assist you no further if you ignore my advice and engage in said criminal conduct.


/

DonkeyHotay
DonkeyHotay topcommenter

@Violeta Luz  It would seem that way given the CBA's failure to police and regulate their own members over such blatant violations of the Rules of Professional Conduct.


elkabong
elkabong

Worse yet, a stoner attorney.

Lol!

Clarence
Clarence

@This-Is-Spinal-Tap Drafting legislation is extremely difficult.  Just ask any insurance defense lawyer who is paid millions by insurance companies to parse every...single...word of a statute.  The fact that Edson's strongest claim to being memorable is because he had a ponytail 10 years after the fad ended tells me all I need to know about him.

Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

@This-Is-Spinal-Tap ... what idiot would publicly claim responsibility for writing that dysfunctional feeble piece of crap that failed to establish any individual legal right to use, possess or grow, and explicitly allowed employers and the government to continue to discriminate against sick patients who use marijuana ?


Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

@Clarence " If you lawyers want to become "businessmen" and violate Federal law, resign your license and have at it.  Or get disbarred.  It's your choice."


Disbar the unethical marijuana McShysters! -- Disgorge the illegal $$ they collected!

.


Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

@Pam Stiffler ... with a feeble and incompetent Office of Attorney Regulation, and 100s of thousands of $$$ to be made violating criminal laws, why should they bother with something as pesky as ethics?


Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

@This-Is-Spinal-Tap ... and as if Michael Roberts is credible, with his propensity to fabricate blatant lies for a convenient headline, and to uncritically regurgitate verbatim the abject lies of any publicity-seeking Marijuana McShyster who wants his self-promoting mug in the paper -- like lyin' Brian Vicente and rapey Rob Corey.

How can an honest stoner know the crap Westweed reports isn't abject bullshit, as it too often is?

How can an honest stoner know that the $$$ they paid their Marijuana McLawyer for advice actually yielded a competent legal guidance and wasn't simply an unethical incompetent rubber-stamp approval of their hare-brained illegal scheme -- such was when the Craigslist fools were running around delivering marijuana to anyone / everyone "for donations", claiming their lawyers told them it was "legal" under A64.

LOL!

LegalTip: when your "lawyer" gets high with you, and agrees with whatever idiotic illegal scheme you propose to engage in, even offering to assist, aid and abet at $325 / hour -- or a fat $10,000 "retainer" -- then you no longer have an attorney, you've got a co-defendant and future cellmate.

Hope that helps.


The Colorado Office of Attorney Regulation is looking as incompetent and pathetic as the MMED. 


.

Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

@Edward Casillas ... and the Colorado Bar Association lacks the spine to enforce any ethics upon those Marijuana McShysters who deliberately and willfully violated Federal Law and the RPC in their rabid lust for $$$.


Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

@Val Weitz  ... hey numbnuts, NO ONE is FORCED to operate a Marijuana Dispensary ... they do it for greed, vanity and personal financial gain.


@Val Weitz "Where does federal law supersede state law?"

Check the U$ Constitution, moron.


Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

@Clarence @This-Is-Spinal-Tap 

Lyin' Brian Vicente claimed he and his McLawyer pals spent hours parsing and debating "every single word" in that festering turd A64.

So any defects and faults in that piece of crap are incontrovertible evidence of his abject legal incompetence ... or he actually put them there on purpose and merely feigns "mistake".

Either way, it's a hanging offense ...


This-Is-Spinal-Tap
This-Is-Spinal-Tap

@Clarence It doesn't take a rocket scientist to figure out that you should grant the right to use marijuana in your law. Am. 20 is only a limited exception to certain criminal laws, it grants no rights. Edson et al marketed as medical marijuana "legalization", thus leading many patients into a trap where they thought their activity was "legal", and then it turned out otherwise. Lying lawyers should be disbarred, at minimum.

redsoxfan
redsoxfan

@Donkey_Hotay_is_GOD that could be any business/franchise owner. I don't think the guy that owns a Subway does it for loss of money. He does it for personal financial gain and to have standing in the community(vanity). No one forced him to do it either. Your argument holds no water. Also, when you start calling people names it just shows how low your "intelligence" really is. 

spekternzn
spekternzn

Wow, masterfully articulated rebuttal. Unfortunately for legal mj, you are correct. Because of Article VI clause 2 "the supremacy clause" all federal laws and international treaties supersede any state laws even constitutional ones. However, if no-one ever questioned the relevance and ethics of federal laws we would still have slaves and weomen would not be voting. Also in the future can you reply with out being a self aggrandizing butt licker? I get a creepy feeling you do the "silence of the lambs" tuck in the mirror while refreshing and re-reading your ingeniously constructed intellectual thrashings as you wait for your next unsuspecting victim.

This-Is-Spinal-Tap
This-Is-Spinal-Tap

@Donkey_Hotay_is_GOD  

Hmmm, VIcente's the head pot lawyer for the government in Pueblo, isn't that where the Columbian cartel was setting up shop?

"Both Solano and Uribe and another one of the targeted subjects, Gerardo Uribe, have been involved in a contentious plan to build a large marijuana greenhouse in eastern Pueblo County, records show."

"Pueblo County commissioners in July approved the project on property owned by a company controlled by Gerardo Uribe, GML LLC. Uribe told commissioners he wanted to invest $6 million in the operation, according to The Pueblo Chieftain."

http://www.denverpost.com/breakingnews/ci_24580571/fed-raids-colorado-marijuana-businesses-seek-ties-colombian

Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

@This-Is-Spinal-Tap 

"Strict Regulation" = Total Government and Law Enforcement Control ... with 100s of new laws and massive taxation added for fun!

Every new law, tax and regulation = unlimited future income for the Marijuana McShysters who created the quagmire and now charge huge legal fees to those who get stuck in same quagmire.

Lyin' Brian Vicente and Christian "128 eighths per ounce" Sederberg are now working for and charging the Government in Pueblo to further restrict, regulate and tax marijuana users and growers.

Not much different than an Arsonist offering to put out their own fires ... for $325 / hour, and then charging consulting fees to taxpayer funded fire departments.

The conflict of interest doesn't get much more obscene than that.




This-Is-Spinal-Tap
This-Is-Spinal-Tap

@Donkey_Hotay_is_GOD Even a quick glance at Am. 64 shows it was written for the police, not the people. What look like mistakes to a pro-cannabis consumer are really a cop's wet dream.

Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

@This-Is-Spinal-Tap @Donkey_Hotay_is_GOD 

ps: to all those adults under 21 -- you're COMPLETELY FUCKED as the authors of A64 deliberately and explicitly DENIED you ANY LEGAL ACCESS to rec. marijuana ... even though the under 21 demographic has always suffered the most arrests and prosecutions for pot crimes.

How fucking cynical was that ???

Once again guaranteeing future business $$ to the marijuana criminal defense lawyers' retirement fund.

This-Is-Spinal-Tap
This-Is-Spinal-Tap

@Donkey_Hotay_is_GOD Yes, right on! Didn't these lying lawyers also market Am. 64 as an "end to prohibition"? 

These people are a bigger threat to true legalization than the DEA. It's an "end to prohibition" if you have 6 plants, but screw you if you have 7 plants. We "legalized it". Didn't you get the memo?

Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

@This-Is-Spinal-Tap

Lazy stoned "reporters" at Westweed!

though Wastword has given way more free and uncritical press to the quack habitual criminal Rob Corry and lyin' Brian Vicente. 

No wonder the average stoner in Colorado has NO CLUE as to what is or isn't legal.


Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

@redsoxfan ... and when the Subway owner deliberately and willfully violates numerous criminal laws -- on a daily basis -- for said personal pecuniary gain -- they can expect to one day be called to task for their crimes.

And any unethical lawyer that advised, assisted, aided and abetted that "franchise owner" to engage in that continuing illegal activity can also expect to be held accountable before their state ethics committee.

hth.

Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

@spekternzn ... speaking of deflection, why not return to the issue at hand:

So tell us, who forced the Marijuana McShysters to violate Federal Law, and their own State Rules of Professional Conduct -- while charging $325 / hour for that unethical, unlawful, corrupt advice?

Be specific.


spekternzn
spekternzn

I don't want to touch your lotion. I'm sure you just creamed all over your basket. Those were both federal laws that were later over turned. Just like the defense of marriage act. But hey, bigbrother knows what's best right? Nice deflection btw in accusing me of being a bigoted drop out. Total class.

Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

@spekternzn ... you dropped out of school, didn't you?

The FEDERAL Emancipation Proclamation and the 13th, 14th and 15th Amendments to the FEDERAL Constitution trumped and nullified ALL those Southern "State's Rights" inspired perversions of justice.

It was FEDERAL LAW, and Federal intervention over those bigoted racist policies of the individual States who were crying "state's rights" that ended the abhorrent institution of slavery in the U$A.

The SUPREMACY of Federal Law has been settled now for well over 150 years ... if you don't like it, you can whistle Dixie.

Now put the lotion in the basket ...

spekternzn
spekternzn

Fugitive slave act(s)? Dred Scott?

Donkey_Hotay_is_GOD
Donkey_Hotay_is_GOD

@spekternzn "However, if no-one ever questioned the relevance and ethics of federal laws we would still have slaves"

Epic FAIL!

You got that exactly ass-backwards, fool, it was the Southern States who attempted to exercise their imaginary "rights" over those of the Federation ... 

... and it was FEDERAL law that trumped their perverse State institutions of Slavery, and 125 years later it was FEDERAL supremacy that once again trumped their claimed "states rights" to continue to segregate and discriminate against those Negroes.


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