Jacob Sullum
Alaska's Measure 2, which legalizes marijuana for recreational use, takes effect on February 24, eliminating penalties for possessing up to an ounce in public, growing up to six plants at home, and sharing up to an ounce at a time. Commercial production and distribution will take a bit longer: The initiative requires the state's Alcoholic Beverage Control Board to adopt regulations for marijuana businesses by November and start accepting applications from growers and retailers by early 2016. But where will those cannabis entrepreneurs get the legal guidance they need to navigate the new regulatory system? The answer is not as clear as you might think, since marijuana remains illegal under federal law and Alaska's Rules of Professional Conduct say "a lawyer shall not counsel or assist a client to engage in conduct that the lawyer knows is criminal."
Despite that rule, the Alaska Bar Association's Ethics Committee recently advised lawyers that it's OK to tell a client how to comply with state and local laws governing the commercial production and distribution of marijuana, as long as they make it clear that those activities remain felonies under federal law. Furthermore, the committee says in an unofficial opinion, a lawyer "probably could ethically provide to a marijuana business that is legal under Alaska law the same types of business law services a lawyer could provide to any other legal business," such as drafting contracts and other documents. But the memo adds that "the question of the lawyer actually participating in the business—as by investing or being on a board of directors—is more complex." Until the Alaska Supreme Court or the bar association's board of governors resolves the issue, the committee says, "a lawyer should exercise caution and not become directly involved in operating a business that remains illegal under federal law."
The Colorado Bar Association initially took a narrower view of the extent to which lawyers can ethically assist cannabusinesses. Colorado's Rules of Professional Conduct say "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal." According to a 2012 opinion from the Colorado Bar Association, that rule "prohibits lawyers from assisting clients in structuring or implementing transactions which by themselves violate federal law." That meant a lawyer could not, for example, draft or negotiate contracts or leases for cannabusinesses, although he could advise clients about the legal consequences of past or future marijuana-related activities. Last March the Colorado Supreme Court approved a rule change that eliminated this restriction. Under the new rule, a lawyer "may assist a client in conduct that the lawyer reasonably believes is permitted" by state and local laws governing the cannabis industry. The lawyer also "shall also advise the client regarding related federal law and policy."
Last month the Washington Supreme Court made a similar change in light of I-502, that state's legalization measure. The court adopted a rule that says "a lawyer may counsel a client regarding the validity, scope, and meaning of Washington Initiative 502 and may assist a client in conduct that the lawyer reasonably believes is permitted by this initiative and the statutes, regulations, orders and other state and local provisions implementing them."
[Thanks to Marc Sandhaus for the Alaska Disptach News link.]
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