After voters approved Initiative 502 in November 2012 permitting and regulating “recreational” marijuana, questions immediately arose regarding the extent to which lawyers could advise and assist clients in state-authorized marijuana businesses. Washington RPC 1.2(d), like its ABA Model Rule counterpart, generally permits lawyers to advise clients on the legality of proposed conduct but prohibits lawyers from assisting clients “in conduct that the lawyer knows is criminal[.]” The tension was—and remains—that marijuana production, sale, and use are prohibited by federal law. The Obama Administration Justice Department, however, issued guidelines suggesting that prosecutorial resources would not be focused on state-regulated marijuana activities.
The Washington Supreme Court resolved this tension in 2014 with a new Comment 18 to RPC 1.2 that permitted lawyer assistance to state-approved marijuana businesses “[a]t least until there is a subsequent change of federal enforcement policy[.]” The Washington State Bar Association (WSBA) Committee on Professional Ethics (CPE) then followed with an advisory opinion—No. 201501—that relied on the comment and provided additional practical guidance to lawyers in this emerging area. In 2018, however, the Trump Administration withdrew the earlier Department of Justice guidelines—leaving considerable ambiguity about the key predicate phrase in Comment 18.
In light of the new administration’s position, the CPE and the WSBA Board of Governors recommended a new formulation of Comment 18 to the Supreme Court. The Supreme Court adopted the proposal this past September. The new wording is similar to language used in several other states and decouples the comment from federal enforcement policy:
“Under paragraph (d), a lawyer may counsel a client regarding Washington’s marijuana laws and may assist a client in conduct that the lawyer reasonably believes is permitted by those laws. If Washington law conflicts with federal or tribal law, the lawyer shall also advise the client regarding the related federal or tribal law and policy.”
At the same time, the Supreme Court adopted a companion comment to RPC 8.4, which governs professional misconduct, to clarify that a lawyer who complies with RPC 1.2(d) does not violate RPC 8.4 either. New Comment 8 to RPC 8.4 reads:
“A lawyer who counsels a client regarding Washington’s marijuana laws or assists a client in conduct that the lawyer reasonably believes is permitted by those laws does not thereby violate RPC 8.4. See also Washington Comment [18] to RPC 1.2.”
As I write this in early December, the CPE is working on a revision to Advisory Opinion 201501 to reflect these amendments.
Mark Fucile. Mark handles professional responsibility, regulatory and attorney-client privilege matters throughout the Northwest. He has chaired the WSBA Committee on Professional Ethics and is a co-editor of the Bar’s publications “Law of Lawyering in Washington” and the Legal Ethics Deskbook. He can be reached at 503-224-4895 or mark@frllp.com.
