Sunday, March 30, 2014

A Curious Comment: The Colorado Supreme Court Addresses the Pot Paradox

The Dome of the Ralph Carr Justice Center

This past Monday the Colorado Supreme Court addressed, but did not fully resolve, an ethical paradox which has been troubling lawyers since Colorado’s constitution was amended in 2000 to legalize the use of marijuana for medical purposes – with a footnote.
Technically the court added Comment [14], effective immediately, to the end of Colorado Rule of Professional Conduct 1.2:

[14] A lawyer may counsel a client regarding the validity, scope, and meaning of Colorado constitution article XVIll, 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.  ln these circumstances the lawyer shall also advise the client regarding related federal law and policy.  (Emphasis added.)
Both the Colorado Supreme Court’s Standing Committee on the Rules of Professional Conduct and the Colorado Bar Association’s Ethics Committee had recommended that the court provide such clarification because of the untenable conflict created between federal law, under which marijuana is classified as a Schedule I controlled substance, and Colorado’s constitutional legalization of marijuana, first  for medical, and later for recreational, use. 
Colo. RPC 1.2 states:

(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. (Emphasis added.)

The practical effect of Rule 1.2(d) is to place Colorado attorneys in disciplinary peril if they counsel or assist clients who are engaging in activities that are not merely lawful under Colorado law, but constitutionally protected.

In some ways, it is appropriate that the court relegated its handing of this issue to equivalent of an ethical footnote.  It would be patently absurd for the members of the court, who have both plenary authority over the admission and regulation of attorneys in Colorado, as well as a duty to support Colorado’s constitution, to effectively deprive Colorado citizens of the ability to obtain legal advice regarding activities which are constitutionally protected in Colorado.  It is a curious Comment, nevertheless. 

First, it is mildly curious that the court’s guidance came in the form of a Comment and not a Rule.  The Bar and the court’s own Standing Rules Committee had each urged the court to adopt a new Rule 8.6 which would expressly authorize attorney assistance of marijuana clients, as well as a new Comment to Rule 8.4 which would have provided a safe harbor for attorneys using cannabis either medically or recreationally.  In adopting a single Comment, the court seemed to side with James Coyle, head of Colorado’s Office of Attorney Regulation Counsel, who publicly stated, “I don’t think there is a need for the new rule.” 

Why a Comment and not a Rule?  Under the Colorado Rules of Professional Conduct, Comments are instructive, but not a basis for imposing attorney discipline.  “Comments do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules.”  Colo. RPC Scope [14].  “The Comment accompanying each Rule explains and illustrates the meaning and purpose of the Rule. . . . The Comments are intended as guides to interpretation,” and are “sometimes used to alert lawyers to their responsibilities under such other law,”  “but [it is] the text of each Rule [which] is authoritative.” Id. [15] & [21].

Adopting a Comment, rather than adding or amending a Rule, is consistent with the purpose of Comments to “alert lawyers to their responsibilities under such other law.”  Indeed, new Comment [14] not only alerts attorneys to the existence of contrary federal law, it mandates that “the lawyer shall also advise the client regarding related federal law and policy.”  This, too, is curious. 

Consistent with the dichotomy between Rules and Comments described in the Scope of the Rules, the word “shall” appears only a handful of times in all the Comments, and virtually always in reference to a Rule.  This oddity in new Comment [14], and its architecture, suggests it may have been originally drafted as a Rule.

Buttressing this speculation is third curiosity: the court’s statement that “Justice Coats and Justice Eid would not approve Comment [14].”  I am unaware of any other Comment or Rule in the Colorado Rules of Professional Conduct to which a justice has expressly dissented.  With open dissent in its ranks, it is not inconceivable that, to secure the necessary votes of four justices, Comment [14] was originally drafted as a Rule, but relegated to a Comment as the result of a brokered compromise.

Justices Coats’ and Eid’s dissent reflects an earnest debate regarding the legality and ethics of advising and assisting clients regarding Colorado’s marijuana laws which has been ongoing in the Bar for over a decade.  It is a sincere difference of opinion, regarding which ethicists and regulators may reasonably disagree. 

On the one hand, under federal law, marijuana is a controlled substance, the manufacture, distribution, dispensing, and possession of which are crimes.  21 U.S.C. §§841(a) & 844(a).  Based on federal supremacy, many ethicists convincingly argue that – regardless of one’s opinion of the historic, political, and policy alchemy that resulted in cannabis being classified as a Schedule I controlled substance – Colorado lawyers (and judges) swear an oath to support both the federal and state constitutions, and are thus ethically prohibited from counseling or assisting clients to engage in conduct which the lawyer knows is criminal, regardless what Colorado’s constitution says. 

On the other hand – excepting appearances before federal courts and agencies – the admission and regulation of attorneys is one of the last bastions of exclusive state jurisdiction.  Relying in part on the Tenth and First Amendments, other equally convicted ethicists persuasively contend that it would be absurd if lawyers were subject to professional discipline for advising and assisting persons engaged in activities authorized under state law.  While some in the former group cynically dismiss the views of the latter as ethics by expedience – being a tendentious justification to cash in on the Acapulco Gold Rush – neither group can fairly claim to hold the higher moral or ethical ground. 

Thus far, the opinions of ethics bodies reflect this split.  Compare Arizona Ethics Op. 11-0 (Feb. 2011) (“A lawyer may ethically counsel or assist a client in legal matters expressly permissible under the Arizona Medical Marijuana Act . . . despite the fact that such conduct potentially may violate applicable federal law.”) with Connecticut Informal Ethics Op. 2013-02 (Jan. 2013) (“It is our opinion that lawyers may advise clients of the requirements of the Connecticut Palliative Use of Marijuana Act. Lawyers may not assist clients in conduct that is in violation of federal criminal law.”) and Maine Ethics Op. 199 (July 2010) (attorneys must adhere to the letter of Rule 1.2(d)).

Comment [14] is also notable for what it does not address: an attorney’s personal use of marijuana, either medically or recreationally.  The Report of the Amendment 64 Subcommittee of the Colorado Supreme Court’s Standing Committee on the Rules of Professional Conduct recommended that the court adopt new Comment [2A] to Rule 8.4 to sanction personal use of marijuana by lawyers, but the court did not.  Given the 5-2 split among the justices on new Comment [14] it is not surprising a majority did not coalesce around adding a Comment that, despite its somber legalese, would have undoubtedly spawned headlines like, “Court to Bar: ‘Party on Garth!’” 

The court may have also thought such a Comment was unnecessary.  The thoughtful and thorough analysis set forth in Opinion 124 of the Colorado Bar’s Ethics Committee, regarding a lawyer’s use of medical marijuana, is equally applicable to an attorney’s recreational use.  With deft and due consideration given to all viewpoints, Opinion 124 concludes “a lawyer’s medical use of marijuana in compliance with Colorado law does not, in and of itself, violate Colo. RPC 8.4(b).  Rather, to violate Colo. RPC 8.4(b), there must be additional evidence that the lawyer’s conduct adversely implicates the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.”  Echoing a similar view, an April 26, 2013 Memorandum from the Colorado Office of Attorney Regulation states “OARC has not viewed conduct involving personal use of small amounts of marijuana, standing along, as a violation of Colo. RPC 8.4(b).  Any reflection on the attorney’s fitness to practice is not significant enough to warrant discipline or diversion.”

Of course, neither new Comment [14], the public position of the OARC, nor the opinions of the Colorado Bar Association’s Ethics Committee can dispel the elephant in the room:  the successful demonization of cannabis instigated by HarryJ. Anslinger has cast a shadow nearly 80 years long which continues to shape federal drug policy towards marijuana. 

For this reason, there is no guaranty that the U.S. District Court for Colorado will endorse the views expressed in Comment [14], and good reason to believe it will not.  The federal district court exercises independent authority over those admitted to practice before it, and has its own Attorney Rules.  Although these Rules expressly adopt the Colorado Rules of Professional Conduct for most purposes, when, in 1999, the Colorado Supreme Court amended its Rules of Civil Procedure and Rules of Professional Conduct to permit attorneys to offer “unbundled legal services,” the U.S. District Court balked, expressly excluding all such changes from its Standards for Professional Conduct. 

Because federal marijuana law remains unaltered, the U.S. District Court may feel compelled to similarly disavow Comment [14].  However, because Comment [14] is not automatically adopted under the current iteration of D.C.COLO.LAttyR2, a second public rift between the Colorado federal and state benches may be avoided.  Further, any advice and assistance attorneys may render to clients regarding marijuana matters will overwhelmingly be transactional in nature, not litigation advice.  Any civil litigation which may arise from marijuana, for example, a breach of contract action, may be brought in state courts.  Accordingly, attorneys practicing before Colorado federal courts should be able to do so comfortably within the confines of Colo. RPC 1.2(d).

The immutable bottom line is that Colorado law is directly at odds with federal law.  The manufacture, distribution, dispensing, and possession of cannabis are federal crimes.  For now, the Department of Justice’s guidance on investigative and prosecutorial discretion, expressed in the so-called “Cole Memorandum,” means that Colorado attorneys have little to fear in representing marijuana clients so long as they act within the bounds of Colorado’s marijuana laws.  Nor is there much concern that blowing a little grass on the weekend will result in a Colorado attorney facing criminal penalties or professional discipline.  That said, as long as gulf between federal and Colorado law persists, the party for lawyers and their clients could be over in a single election.