Formal Opinion 124 (revised)—a Lawyer's Use of Marijuana
| Publication year | 2015 |
| Pages | 20 |
| Citation | Vol. 44 No. 12 Pg. 20 |
In and Around the Bar
CBA Ethics Committee
Formal Opinion 124 (Revised)—A Lawyer's Use of Marijuana
Introduction
The Colorado Bar Association Ethics Committee (Committee) has been asked to opine whether a lawyer who, in compliance with Colorado law, cultivates, possesses, and uses marijuana to treat a debilitating medical condition, or who purchases, possesses, and uses marijuana recreationally, may do so without violating the Colorado Rules of Professional Conduct (Colo. RPC or the Rules). The Committee first summarizes the relevant federal law criminalizing possession and use of marijuana. Next, the Committee summarizes Colorado law applicable to the use of marijuana. The Committee then identifies ethics rules and case law that frame its analysis of when a lawyer's use of marijuana may violate the Rules. Finally, the Committee summarizes the Rules and considerations which apply when one lawyer suspects that another lawyer is practicing law while impaired, regardless of the cause of the impairment.
Our conclusion is limited to the narrow issue of whether personal use of marijuana by a lawyer violates Colo. RPC 8.4(b). This opinion does not address whether a lawyer violates Rule 8.4(b) by counseling or assisting clients in legal matters related to the cultivation, possession, or use by third parties of marijuana under Colorado law. See Colo. RPC 1.2, cmt. [14] ("A lawyer may counsel a client regarding the validity, scope, and meaning of Colorado constitution article XVIII, sees. 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.").
Syllabus
Federal law treats the cultivation, possession, and use of marijuana for any purpose, even a medical one, as a crime. Although Colorado law also treats the cultivation, possession, and use of marijuana as a crime, it nevertheless permits individuals to cultivate, possess, and use small amounts of marijuana for the treatment of certain debilitating medical conditions. Colorado law also permits, under certain restrictions, the possession and use of marijuana for recreational purposes. Cultivation, possession, and use of marijuana which complies with Colorado law, however, does not guarantee an individual's protection from prosecution under federal law. Consequently, an individual permitted to possess and use marijuana under Colorado law may be subject to arrest and prosecution for violating federal law.
To violate Colo. RPC 8.4(b), there must be evidence that the lawyer's conduct adversely affects the lawyer's honesty, trustworthiness, or fitness as a lawyer.[1] This opinion concludes that a lawyer's use of marijuana in compliance with Colorado law does not, in and of itself, violate Colo. RPC 8.4(b).
A lawyer's use of marijuana in compliance with Colorado law may implicate additional Rules, including Colo. RPC 1.1, 1.16(a)(2), and 8.3(a). Colo. RPC 1.1 is violated where a lawyer's use of marijuana impairs the lawyer's ability to provide competent representation. If a lawyer's use of marijuana materially impairs the lawyer's representation of the client, Colo. RPC 1.16(a)(2) requires the lawyer to withdraw from the representation. If a lawyer knows that another lawyer's use of marijuana has resulted in a Colo. RPC violation that raises a substantial question as to the using lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects, then the other lawyer may have a duty under Colo. RPC 8.3(a) to report those violations to the appropriate disciplinary authority.
Analysis
I. Federal Law
The federal government regulates marijuana possession and use through the Controlled Substances Act, 21 U.S.C. § 811 (CSA). The CSA classifies "marihuana" as a Schedule I controlled substance. 21 U.S.C. § 812(b). Federal law prohibits physicians from dispensing a Schedule I controlled substance, including marijuana, by prescription. United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483, 491 (2001) (no medical necessity exception to CSA prohibition of marijuana). The CSA makes it a crime, among other things, to possess and use marijuana even for medical reasons. Id.; 21 U.S.C. §§ 841-864. In Gonzales v. Raich, 545 U.S. 1 (2005), the United States Supreme Court recognized the authority of the federal government to prohibit marijuana for all purposes, even medical ones, despite valid state laws authorizing the medical use of marijuana.[2]
II. Colorado Law
The Colorado Uniform Controlled Substances Act of 1992 (the UCSA) substantially mirrors the federal CSA. See C.R.S. §§ 18-18-101 to 18-18-605. Colorado's UCSA, like the federal CSA, treats marijuana as a "controlled substance." See C.R.S. § 18-18-102(5). Like federal law, Colorado law criminalizes the possession and use of marijuana. See C.R.S. § 18-18-406. Colorado law, however, differs from...
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