Chapter 27 - § 27.5 • ADVISING CLIENTS ON WATER MATTERS INVOLVING MARIJUANA-RELATED ACTIVITIES

• Jurisdiction: Colorado

§ 27.5 • ADVISING CLIENTS ON WATER MATTERS INVOLVING MARIJUANA-RELATED ACTIVITIES

Colorado voters decriminalized recreational use of marijuana by approving Amendment 64, which was adopted on November 6, 2012. Amendment 64 added § 16 to Article XVIII of the Colorado Constitution, providing that "the use of marijuana should be legal for persons twenty-one years of age or older . . . [and] should be regulated in a manner similar to alcohol. . . ."⁶⁸ In addition to Colorado's previously existing medical marijuana industry, the burgeoning recreational marijuana industry,⁶⁹ which generated more than $506 million in tax revenue for the State of Colorado from 2014 through the middle of 2017,⁷⁰ is in need of legal advice regarding a myriad of issues. Some of these issues involve water law. For instance, a lawyer may be asked to assist with the purchase or adjudication of water rights that will be used in a marijuana grow operation, or may be asked to prepare a lease or agreement that supplies water to a grow operation.

Many water lawyers, when confronted with such issues, have been reticent to accept representation because federal law criminalizes the cultivation, sale, distribution, and use of marijuana for virtually any purpose⁷¹ and Colo. RPC 1.2(d) provides that "[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal." However, on March 24, 2014, the Colorado Supreme Court adopted Comment [14] to Colo. RPC 1.2 in an effort to clarify that a lawyer will not be subject to professional discipline for assisting a client with marijuana-related conduct that is lawful in Colorado, even though the conduct is criminal under federal law. Comment [14] states in full:

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.⁷²

Comment [14] thus provides a safe harbor for a lawyer to advise and assist with conduct the lawyer reasonably believes is permitted by state law, including adjudicating water rights and drafting leases or contracts for a client that intends to cultivate, manufacture, distribute, or sell marijuana. This safe...