Pubdate: Wed, 06 Nov 2013
Source: Herald, The (Everett, WA)
Copyright: 2013 Associated Press
Contact:  http://www.heraldnet.com/
Details: http://www.mapinc.org/media/190
Author: Gene Johnson, Associated Press

STATE COURT WEIGHS RULE CHANGE FOR LAWYERS ON POT ADVICE

SEATTLE (AP) - Seattle attorney Kurt Boehl is happy to think he's 
contributing to the success of Washington's grand experiment in 
regulating marijuana by advising his clients on how to navigate the 
industry's legal complexities.

But there's a slight worry his efforts could earn him an ethics 
complaint. After all, marijuana is illegal under federal law, and 
lawyers aren't supposed to help their clients break the law.

Washington's Supreme Court could put his mind at ease. The justices 
today are taking up an emergency proposal to change the state's 
ethics rules for lawyers to make clear that attorneys complying with 
state law won't get in trouble for giving pot-related legal advice - 
or for smoking themselves, as long as they're not high at work.

The Supreme Court in Colorado, the other state to legalize marijuana 
for recreational use, has been presented with a similar proposal.

"I really like the concept," Boehl said. "There are attorneys out 
there that are scared to advise clients because it's against federal 
law. As long as we advise our clients about the federal law, we have 
a duty to help them comply with state law."

Washington and Colorado legalized the recreational use of marijuana 
by adults over 21 last year and authorized its sale at state-licensed 
stores. Washington will begin accepting applications this month from 
people seeking state licenses to grow, process or to sell pot - a 
process that creates a thicket of potential legal issues, such as 
contracts with landlords authorizing the production of marijuana on 
their property.

Washington's proposed ethics rule was drafted by the King County Bar 
Association, which covers Seattle. The state bar declined to endorse 
it, but the Supreme Court's rules committee recommended adopting it, 
and the full court is considering the rule during its regular meeting 
Wednesday.

"Without new rules of professional conduct, the Washington legal 
community would be telling its citizens that they may need to 
navigate this regime without the assistance of attorneys," King 
County bar President Anne M. Daley wrote to the court. "The voters of 
Washington did not endorse this approach."

Lawyers in many states have for years advised clients about the legal 
pitfalls that abound in the medical marijuana realm. It doesn't 
appear that lawyers in Washington or Colorado have ever been 
sanctioned strictly for giving such counsel, though some have run 
into trouble for getting too involved in their clients' questionable 
activities.

The punishments for violating professional conduct rules can include 
suspensions from practicing law or disbarment.

The legal communities in some states have wrestled with similar 
questions in recent years. In Maine, lawyers have been cautioned that 
they risk committing ethical violations if their advice to medical 
marijuana entities crosses the line by assisting them in violations 
of federal law. In Connecticut, the bar association's ethics 
committee issued a similar warning.

But Arizona's bar association held that barring such help to clients 
would deprive them of the assistance they need to follow that state's 
medical marijuana law. And in Colorado, the Supreme Court's Office of 
Attorney Regulation Counsel advised that lawyers who complied with 
the medical marijuana law in personally using cannabis would not run 
afoul of ethics rules.

Douglas Ende, the chief disciplinary counsel of the Washington State 
Bar Association, urged the state Supreme Court to allow more time to 
consider the rule and noted that lawyers in Washington take oaths to 
abide by state and federal law.

Ende suggested the rule wasn't immediately necessary because the U.S. 
Justice Department has made clear that it will allow the states to 
move forward with their regulatory schemes and because lawyers 
complying with state law are at little to no risk of being prosecuted 
for an ethical violation.

The King County Bar Association says it has learned of ethical 
complaints against at least two lawyers for advising clients or using 
marijuana themselves since Washington's recreational pot law passed. 
Though Ende's office hasn't pursued the cases, "the effect on an 
attorney's personal life and professional reputation from being 
accused of misconduct can be substantial, disruptive and expensive," Daly wrote.
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MAP posted-by: Jay Bergstrom