Monthly Archives: October 2015

Cannabis and Washington Lawyering

In December 2014, the Washington Supreme Court added a new comment [18] to Washington RPC 1.2 in order to give some comfort to Washington lawyers who want to assist clients who wish to engage in legal marijuana projects.  The comment, in its entirety, states:

http://mcle.mywsba.org/IO/print.aspx?ID=1682

http://mcle.mywsba.org/IO/print.aspx?ID=1682

The court’s new comment does not go as far as some advocated it should.   The King County Bar, for example, proposed a much more specific rule.   And the WSBA Committee for Professional Ethics (CPE), asked to comment on the King County proposal, also advocated for a more specific and robust rule.   But this is what we got.   As a consequence, the CPE issued a much more far reaching opinion in 2015.   The opinion can be found behind the following link:  WSBA Advisory Opinion 201501 .   Here are the questions the opinion addresses and the short answer:

QUESTIONS:

1. May Lawyer A advise Client A about the interpretation of and compliance with I-502 and the CPPA without violating the Washington Rules of Professional Conduct (the “RPCs”)?  Short Answer:  Yes, qualified.

2. May Lawyer B provide legal advice and assistance to Client B in the formation and operation of a business entity so as to comply with I-502 and the CPPA without violating the RPCs?  Answer:  Yes, qualified.

3. May Lawyer C own and operate an independent business in compliance with I-502 and the CPPA without violating the RPCs?  Answer:  Yes, qualified.

4. Assuming that Lawyer D’s need for and consumption of medical or retail marijuana do not otherwise affect Lawyer D’s substantive competence or fitness to practice as a lawyer, may Lawyer D purchase and consume marijuana in compliance with I-502 and the CPPA without violating the RPCs?  Answer:  Yes, qualified.

5. May Lawyer E engage in the implementation of I-502 the CPPA and, if Lawyer E’s competence and fitness to practice as a lawyer is not affected, purchase marijuana subject to I-502 and the CPPA without violating the RPCs?  Answer:  Yes, qualified.

As you might suppose, the CPE’s opinion goes into considerable detail about the history of the issue and its reasoning.   Footnote 17 to the opinion, for example, also provides references to what other states have done about this issue.   Anyone whose practice (or interest) is impacted by this issue should read the opinion.

Update (November 9 2020):

In 2018, the Court amended the relevant comments to the Rules of Professional Conduct to read as follows:

RPC 1.2, comment [18]

“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.”

“[Comment [18] adopted effective December 9, 2014; Amended effective September 25, 2018.]”

RPC 8.4, comment [8]

“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 RPC 1.2 Washington Comment [18].”

“[Comment 8 adopted effective September 25, 2018.]”

Since the Court revised these marijuana-related comments, the WSBA Advisory Opinion has not been revised or withdrawn.  Nonetheless, some of its conclusions are even more problematic than they were before the Rule comments were revised.  The problem arises principally because the new comment [8] added to RPC 8.4 fails to address, entirely, whether a Washington lawyer may, without putting himself/herself in ethical jeopardy, actively engage in a marijuana business personally or personally purchase and/or consume marijuana even though it violates federal law.  The  Advisory Opinion conclusions (3)-(5) give a “qualified” answer to the questions raised there and state that a lawyer may personally do so (quite apart from assisting a client), so long as the lawyer’s competence and fitness to practice are not affected.   The Court’s silence on the question of personal use, purchase and consumption in 2018, or since, is deafening.

U.S. v. Wunsch, 84 F.3d 1110 (9th Cir. 1996)

The oath that Washington attorneys take to get licensed is archaic to say the least.  One of the things that Washington attorneys must do is swear to “abstain from all offensive personalities.”  APR 5(d), Item 7.

I recently came across a ninth circuit case that found the prohibition of “offensive personalities” as found in a California statute to be unconstitutionally vague.  U.S. v. Wunsch, 84 F.3d 1110, 1119-20 (9th Cir. 1996).  While the case dealt with a California statute, not the Washington oath, the California statute is equivalent to our oath and the reasoning of the court would seem to apply to the Washington oath.

In that case, a lawyer named Swan had been disqualified by the federal district court –based on a conflict of interest — from representing both parents and their daughter in a criminal tax prosecution.   Swan was sufficiently unhappy that the AUSA had gotten him and his partner disqualified that he sent her a letter expressing his belief that “Your disqualification of Wilson and me was neither just nor fair to the defendants. Surely, it serves your interests because now it will be easy for you.”   More to the point, he “[a]ppended to the letter …a single sheet of paper with the following photocopied words, all enlarged and in capital letters:  `MALE LAWYERS PLAY BY THE RULES, DISCOVER TRUTH AND RESTORE ORDER. FEMALE LAWYERS ARE OUTSIDE THE LAW, CLOUD TRUTH AND DESTROY ORDER.'”  The federal district court found that this letter violated several local rules, including one that incorporated by reference a California statute,  (then) Section 6068(f) of California’s Business and Professions Code, which read, in relevant part: “It is the duty of an attorney … [t]o abstain from all offensive personality[.]”  The court ordered Swan to apologize to the AUSA and referred the matter to disciplinary authorities. Swan appealed the trial court’s order and the ninth circuit reversed.    It upheld Swan’s facial challenge to the “offensive personalities” statute (which has since been amended by deleting the offending offensive personalities).   According to the court:

Clearly, “offensive personality” is an unconstitutionally vague term in the context of this statute. … As “offensive personality” could refer to any number of behaviors that many attorneys regularly engage in during the course of their zealous representation of their clients’ interests, it would be impossible to know when such behavior would be offensive enough to invoke the statute. For the same reason, the statute is “so imprecise that discriminatory enforcement is a real possibility[,]” …., and is likely to have the effect of chilling some speech that is constitutionally protected, for fear of violating the statute.

Id. at 1119 (citations omitted).   Judge Farris dissented from this conclusion, believing that “offensive personalities” could be saved by giving it a limiting interpretation to “conduct that affects the administration of justice.”