Up in Smoke: Lawyers’ Ethical Use of Marijuana?

On December 1, The State of Washington will officially implement its legalization of marijuana. In response, the King County Bar Association (KCBA) Board of Trustees has recommended a new Rule of Professional Conduct and a new comment to Oregon’s existing misconduct rule to address two major areas of concern that members of the bar face: 1) advising clients about state laws that are in conflict with federal laws and 2) lawyers’ personal use of marijuana. Marijuana remains illegal under federal law, but the Justice Department, under the Obama administration, has not been aggressive in enforcement.

Under KCBA’s proposed Rule 8.6, a lawyer would not violate the Rules of Professional Conduct by engaging in conduct that is either a) permitted or b) within affirmative defense to prosecution under state criminal law, solely because that conduct may violate federal law. In other words, this means that a lawyer may consume marijuana recreationally even though it remains illegal under federal law. The proposal notes that use of marijuana may cause a lawyer to violate other state laws, such as driving while impaired and/or other professional conduct rules, such as competence and diligence. The draft comments to rule 8.6 also specify that Oregon’s marijuana law is the only intended exemption regarding an attorney’s obligation to adhere to federal legislation.

The KCBA was founded in 1886 and currently represents over 14,000 attorneys, judges, law professors and law students in King County. It will be interesting to follow the KCBA and the Oregon Bar to learn how the legalization of marijuana ultimately impacts a lawyer’s rights and obligations.

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