Can a Colorado lawyer use marijuana legally under state law without violating the ethics rules, given that it remains a federal crime?
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This page answers the general question as of 2012. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
Opinion 124 (adopted April 23, 2012, with a December 10, 2012 addendum) addresses whether a lawyer who lawfully cultivates, possesses, and uses small amounts of marijuana to treat a debilitating medical condition under Colorado law violates the Colorado Rules of Professional Conduct, given that the same conduct remains a federal crime under the Controlled Substances Act. The Committee limits its conclusion to the narrow question of whether the lawyer's personal use violates Colo. RPC 8.4(b); it does not address advising clients on marijuana businesses.
The opinion concludes that medical use complying with Colorado law does not, in and of itself, violate Rule 8.4(b). It reads that rule as a two-part test: there must be a criminal act, and that act must reflect adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer. Even though the Supremacy Clause means state-legal marijuana use can still be a federal crime (Gonzales v. Raich), the Committee finds no nexus between a lawyer's compliant medical use and the lawyer's honesty or trustworthiness, and no nexus to "fitness in other respects" so long as the lawyer both complies with Colorado law and satisfies the competence duty of Rule 1.1. It supports the nexus requirement with Colorado discipline cases (Hook, Senn) holding that not every criminal act warrants discipline. The December 2012 addendum, prompted by Amendment 64 legalizing recreational marijuana in Colorado, states that the opinion's conclusions and analysis "apply equally to a lawyer's use of marijuana for medicinal and recreational purposes."
The opinion then addresses impairment and reporting. Under Rule 1.1, a lawyer whose marijuana use impairs the ability to provide competent representation violates the competence duty, and under Rule 1.16(a)(2) a lawyer whose physical or mental condition materially impairs the ability to represent a client must decline or withdraw from the representation and protect the client's interests (Rule 1.6(d)). Where an impaired lawyer will not act, the firm's partners and supervisors have obligations under Rule 5.1 to take reasonable steps to ensure compliance. Finally, under Rule 8.3(a), a lawyer who knows that another lawyer's marijuana-related conduct has caused a rule violation raising a substantial question about that lawyer's honesty, trustworthiness, or fitness must report it; the opinion draws on ABA Formal Ops. 03-429 and 03-431 for how the reporting and "knowledge" standards apply to impairment.
In practice
The opinion holds that, under the rules as they stood at the time, a lawyer's marijuana use that complies with Colorado law is not itself a Rule 8.4(b) violation, because the rule requires the criminal act to bear a nexus to honesty, trustworthiness, or fitness, and the December 2012 addendum extends that holding to recreational use. It frames the operative ethical constraints as the impairment and competence rules rather than the criminal-act rule: a lawyer whose use impairs competent representation violates Rule 1.1, a lawyer who is materially impaired must withdraw under Rule 1.16(a)(2), supervisors carry Rule 5.1 obligations toward an impaired colleague, and another lawyer who knows of an impairment-caused violation raising a substantial fitness question has a Rule 8.3(a) reporting duty. The opinion expressly notes it cannot speak to how disciplinary authorities will treat such use, and federal law still criminalizes marijuana, so the analysis should be checked against current federal and state law before being relied upon.
Common questions
Q: Does using medical marijuana legally in Colorado make a lawyer subject to discipline?
A: Not by itself. The opinion concludes compliant medical use does not violate Rule 8.4(b) without "additional evidence that the lawyer's conduct adversely implicates the lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects."
Q: Does the opinion cover recreational marijuana too?
A: Yes, through its addendum. After Amendment 64 took effect in December 2012, the Committee added that the opinion's conclusions and analysis "apply equally to a lawyer's use of marijuana for medicinal and recreational purposes."
Q: What if marijuana use affects the lawyer's work?
A: Then other rules apply. The opinion explains that use impairing competent representation violates Rule 1.1, and that a lawyer whose condition "materially impairs" the ability to represent a client must decline or withdraw under Rule 1.16(a)(2) and take reasonable steps to protect the client.
Q: If I think another lawyer is impaired by marijuana use, must I report it?
A: Only in limited circumstances. Under Rule 8.3(a) the duty arises when you know the other lawyer's conduct has caused a rule violation that raises a "substantial question" about that lawyer's honesty, trustworthiness, or fitness; "substantial" refers to the seriousness of the offense, and the opinion suggests considering raising it with the lawyer or a lawyer-assistance program first.
Background and rules framework
The opinion interprets Colo. RPC 8.4(b) (criminal acts reflecting adversely on fitness), read against the federal Controlled Substances Act and Colorado's medical-marijuana constitutional and statutory framework, and the Supremacy Clause as applied in Gonzales v. Raich. It then applies Colo. RPC 1.1 (competence), 1.16(a)(2) (withdrawal for material impairment) with Rule 1.6(d), Rule 5.1 (supervisory duties), and Rule 8.3(a) (reporting misconduct), with the knowledge standard in Rule 1.0(f). It relies on ABA Formal Ops. 03-429 and 03-431 for the impaired-lawyer and reporting analysis.
Citations and references
Rules of Professional Conduct:
- Colo. RPC 8.4(b) / Model Rule 8.4 (criminal act reflecting adversely on fitness)
- Colo. RPC 1.1 / Model Rule 1.1 (competence)
- Colo. RPC 1.16(a)(2) / Model Rule 1.16 (withdrawal for material impairment); Colo. RPC 1.6(d)
- Colo. RPC 5.1 / Model Rule 5.1 (supervisory responsibilities); Colo. RPC 8.3(a) / Model Rule 8.3 (reporting misconduct)
Statutes:
- Controlled Substances Act, 21 U.S.C. §§ 811-864; Colo. Const. art. XVIII, §§ 14, 16; Colorado Uniform Controlled Substances Act, C.R.S. §§ 18-18-101 to -605
Cases:
- Gonzales v. Raich, 545 U.S. 1 (2005); United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001)
- People v. Hook, 91 P.3d 1070 (Colo. OPDJ 2004); People v. Senn, 824 P.2d 822 (Colo. 1992), nexus between criminal act and fitness
Other opinions cited:
- ABA Formal Op. 03-429 (2003): obligations regarding a mentally impaired lawyer in the firm
- ABA Formal Op. 03-431 (2003): duty to report an impaired lawyer
See also
- ABA Formal Op. 03-429: Mentally Impaired Lawyer in the Firm
- ABA Formal Op. 03-431: Reporting an Impaired Lawyer Outside the Firm
- CA COPRAC Op. 2021-206: Colleague Impairment
Source
- Landing page: https://www.cobar.org/ethicsopinions
- Original PDF: https://www.cobar.org/Portals/COBAR/repository/ethicsOpinions/FormalEthicsOpinion_124_2014.pdf
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