June 2014 Bar Bulletin
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June 2014 Bar Bulletin

PRESIDENT'S AWARD: Task Force on I-502 Ethics Issues

By Anne Daly


I am delighted to recognize KCBA's Task Force on I-502 Ethics Issues as this year's President's Award recipient. Committee members are: Mark Fordham (Starbucks), chair; Pete Talevich (K&L Gates); Alison Holcomb (ACLU); James Yand (Miller Nash) and Thomas Fitzpatrick (Talmadge/Fitzpatrick). This group has done extraordinary work on developing guidance and assistance for attorneys to ethically implement Washington's legalized marijuana initiative.

Our task force drafted a proposed comment to RPC 8.4, a new RPC and a first-ever KCBA advisory ethics opinion, each dealing with the conflict that exists between state and federal law. These proposed RPC changes fix ethical problems created by this conflict. KCBA's proposed comment to RPC 8.4 addresses personal use of marijuana by lawyers. It clarifies that lawyers will not be disciplined for personal use of marijuana as long as that personal use does not violate any other rules. In short, the comment explains that personal use of marijuana should be treated like personal use of alcohol regardless of the conflict with federal law.

Proposed RPC 8.6 provides a safe harbor for attorneys advising and assisting clients in complying with I-502. It states that when a conflict exists between federal and state law and an attorney advises and assists a client in complying with state law, the attorney will not be subject to discipline. This proposed rule does not allow an attorney to engage in unethical behavior or behavior that is illegal in other states. It does not allow an attorney to violate other Rules of Professional Conduct.

The advisory ethics opinion drafted by the task force, which was published in the October Bar Bulletin, provides a comprehensive legal analysis for attorneys considering whether to advise and assist clients in complying with I-502.

After approval by the KCBA Board of Trustees, a letter with our proposed RPC changes was sent to the Washington Supreme Court Rules Committee asking that it approve the changes and expedite the rule-making process. This request was granted, with WSBA being asked to provide input as well.

WSBA has provided two proposed comments to the RPCs that are tied to current federal enforcement practices. On May 5, KCBA and representatives of our task force met with the Rules Committee to further discuss adoption of our task force's proposed RPC changes. We hope to have a response from the Supreme Court in mid-June.

With the proposed changes to the RPCs, KCBA's task force recognizes the complexity of implementing I-502. I-502 requires significant oversight and regulation, suggesting attorneys must be involved in the implementation process. Attorneys need to advise and assist clients (individuals and businesses) in many areas: permits, land use, financial/banking, distribution, transportation, tax, environment and criminal liability.

The work of Mark, Pete, Alison, James and Tom provides the Supreme Court with a mechanism to ensure that attorneys in King County and elsewhere in Washington have direction and guidance in advising and assisting clients on I-502 compliance consistent with our RPCs. By bringing these ethical concerns to light and offering a proposed comment and new rule, this group has created an opportunity for a proactive rather than a responsive solution.

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