Attorneys Engaged in the “HIGH” Life in Washington State

The State of Washington and its legal community are again in the headlines for marijuana. As practicing attorneys know, Rule 8.4 of the Rules of the ABA Model Rules of Professional Conduct, and the equivalent provisions in all of the states, forbids a lawyer from engaging in criminal acts and conduct that reflects adversely on his or her fitness to practice. Such a rule essentially has created a “gray area” dilemma for attorneys practicing in states where marijuana has been legalized or decriminalized.

More than half the states in the U.S. have either legalized the recreational use of marijuana or decriminalized the drug for medicinal use. This increased “pot leniency” has impacted the legal community because entrepreneurs also known as “pot-repreneurs” are seeking legal advice and assistance in establishing and running weed related businesses.

Washington, one of five states that has legalized the recreational use of marijuana, was one of the first states in which a bar association addressed this “grey area” dilemma. In 2014 a Washington State Bar Committee on Professional Ethics issued a Report to the Board of Governors and recommendation, which resulted in the Washington Supreme Court’s amendment of its Rule 1.2 to add a comment 18 that establishes that lawyers who advise clients on marijuana-related activities permitted under state law do not violate the Washington State Court Rules of Professional Conduct. However, this amendment did not address whether an attorney may engage in using marijuana or invest in his own pot business. Well, that is no longer the case.

Washington State Bar’s Ethics Committee recently issued Washington Informal Op. 201501, which advises that an attorney may be involved in marijuana-related enterprise so long as the ancillary business is “separate and apart” from his law practice and does not affect his ability to comply with the Washington State Court Rules of Professional Conduct. Further, and arguably more surprising, the Committee concluded that attorneys may purchase and consume marijuana in accordance with Washington state laws that authorize recreational and medicinal use to the same extent that non-lawyers may do so as long as: (1) the use of marijuana does not interfere with an attorneys ability “to provide competent legal advice and otherwise comply with” his ethical obligations; and (2) the federal government does not reverse course on the Department of Justice’s recent announcements that it “does not wish to impede retail sales of medical or recreational marijuana pursuant to a state regulatory system unless the sales implicate other federal concerns such as money-laundering, sales to minors, sales outside of the state regulatory system and the like.”

Though the Washington ethics opinion may be controversial, it does shed some light on the “grey area” created by the rising tide of marijuana legalization and the resulting ethical dilemmas for attorneys seeking to lend assistance or participate in the new industry. Though the opinion does not change the illegal status of the drug at the federal level nor does it apply to lawyers who reside outside of the state of Washington, the opinion does provide a glimpse of what may be to come in legal communities throughout the country.

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