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While the public’s eye and attention have been on the availability of retail marijuana in some Colorado communities, few stories have looked at the ethical quandaries which attorneys in this state have faced as they have tried to advise and inform clients about both recreational and medicinal marijuana sales.

These difficulties have been eased somewhat by the addition of a new comment to Colorado Rule of Professional Responsibility 1.2 on March 24, 2014. The comment, which is included in this release from the Office of Attorney Regulation for the State of Colorado expressly states that an attorney may counsel clients on matters relating to the Colorado Constitutional amendments which allow for the sale of marijuana.

While neutral in its terminology, the comment is a welcome addition for attorneys who had, thus far, been in a sort of ethical limbo when it came to advising clients on such matters. The lack of certainty for attorneys was best exemplified by the reference to a quote from T.S. Eliot in Formal Ethics Opinion 145: “T.S. Eliot, “The Hollow Men,” § V (“Between the conception/And the creation/Between the emotion/And the response/Falls the Shadow.” Available here (subscription required).

There remains considerable uncertainty for attorneys practicing in these areas, particularly since the Federal approach to marijuana cultivation and sales remains susceptible to pressure and change. If you are an attorney with questions about how you can, or cannot, and should, or should not, counsel clients about these matters, contact Ron Nemirow to discuss the lay of the land, and to plan for the uncertain future.