JOHN RUBENS is no Mother Teresa.

On March 24, 2014, the Colorado Supreme Court adopted a new comment to Colo. RPC 1.2. The comment makes clear that Colorado attorneys are allowed to provide legal services to clients in the state-authorized recreational and medical marijuana industry. New Comment [14] to Colo. RPC 1.2 provides:

[14] A lawyer may counsel a client regarding the validity, scope, and meaning of Colorado constitution article XVIII, 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. In these circumstances, the lawyer shall also advise the client regarding related federal law and policy.

The Court’s comment gives Colorado lawyers needed direction on what they can and cannot do in counseling and representing clients regarding this emerging industry. The Court’s comment allows lawyers to counsel and assist clients in conduct that is permitted under Colorado law; but the lawyer must also advise the client regarding the related federal law and federal enforcement policies, so the client understands any potential risks under federal law.

The Colorado Supreme Court is the first regulatory body to give attorneys guidance on this issue. Connecticut, Nevada, Rhode Island and Washington have similar proposed comments (or rules) before their Courts or legislature that address the issue.

This Supreme Court comment recognizes the fundamental need for legal services for conduct that is not only specifically permitted under state law, but is also acknowledged by the federal authorities. See James M. Cole, Deputy Attorney General, U.S. Department of Justice, Memorandum for All United States Attorneys: Guidance Regarding Marijuana Enforcement (August 29, 2013), (“Cole Memo”), found at: http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf.

In providing competent, diligent, conflict-free legal services to clients, Colorado lawyers help ensure there is a strong and effective state regulatory system in place. Effective and knowledgeable representation also helps ensure federal enforcement guidelines are respected.

The Court did not adopt another proposed comment, to Colo. RPC 8.4(b), that would have specifically addressed personal use of marijuana by Colorado lawyers. This office’s position on personal use by lawyers remains the same: The medical or personal use of marijuana in compliance with state law does not, in and of itself, constitute a criminal act “that reflects adversely on a lawyer’s honesty, trustworthiness or fitness in other respects.” This office agrees with the Colorado Bar Association’s Formal Ethics Opinion 124 that in order 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. Of course, any attorney who uses marijuana lawfully under state law but violates other rules of professional conduct, such as those rules involving competence, diligence, adequate communication, conflict-free representation, or honesty, will be subject to discipline.

James C. Coyle is Attorney Regulation Counsel for the Colorado Supreme Court and a member of the Supreme Court Standing Rules Committee. He provided written comment and testified before the Court on proposed rule changes regarding counseling and advising clients in this industry, and personal use by Colorado lawyers.