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39 Alaska B. Rag 1 (2015)

handle is hein.barjournals/askabar0039 and id is 1 raw text is: Conduct rule changes related AN UNCONVENTIONAL CONVENTION on ruan r ed SEE PAGE 10 to new marijuana law proposed -~71~~t AL ON C, Conduct rules: Comments needed to stop this train wreck The Board of Governors invites member comments regarding the following proposed amendments to Alaska Rules of Professional Con- duct 1.2 and 8.4 as well as Alaska Bar Rules 28 and 30. Additions have underscores while deletions have strikethroughs. Alaska Rules of Professional Conduct 1.2 and 8.4. Last No- vember, Alaska voters approved an initiative legalizing the recreational use of marijuana. The initiative became effective Feb. 24, 2015, fol- lowed by nine months of regulation writing and the likely issuance of li- censes in 2016. However, the cultivation, distri- bution sale, and possession of mari- juana remains illegal under federal law. Consequently, lawyers wish- ing to provide legal services to cli- ents engaged in lawful state activ- ity have a potential conflict under Alaska Rule of Professional Conduct 1.2(d) because a lawyer may not counsel or assist a client to engage in conduct that the lawyer knows is criminal or fraudulent. The Supreme Courts of Colorado and Washington have addressed this concern by adopting amend- ments to RPC 1.2 that recognize a lawyer's ability to ethically counsel and assist a client in lawful state activities even though the activities may still be illegal under federal law. The supreme court of Nevada has a similar provision related to medicinal marijuana. Finally, the Oregon State Bar Board of Gover- nors has a proposal under consider- ation. At its Dec. 8, 2014, meeting, the Alaska Rules of Professional Con- duct Committee considered these examples and voted to propose the adoption of an amendment to Alaska Rule of Professional Con- duct 1.2(d) that allows a lawyer to counsel a client regarding Alaska's marijuana laws and assist the client Continued on page 9 Conduct rules: Changes related to new pot law should be adopted By John Novak Just when I thought the public's perception of our profession could not get much lower, along comes the current proposal to amend Alaska Rules of Professional Conduct 1.2 and 8.4. The Board of Governors is seeking input from you, my fellow members of the Alaska Bar, which will be considered at its next meet- ing in May, 2015. Absent your input, the proposed amendments appear to be on the fast track to enactment. So exactly what is up? ARPC 1.2(d) in its current form provides: A lawyer shall not coun- sel or assist a client to engage in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or as- sist a client to make a good faith ef- fort to determine the validity, scope, meaning or application of the law. Is the current rule sound? Does it make sense? Does it instill public confidence? Yes, yes, and yes. The idea is that it currently is unethical for us lawyers to counsel or other- wise assist persons in committing crimes. In other words, the current rule makes it an ethics violation for us lawyers to aid and abet or con- spire in the commission of crimes. If you still are reading this piece, you may well be thinking what rea- sonable person could believe it to be a good idea to amend the rule to no longer make it an ethics violation for lawyers to aid and abet or con- spire with persons in the commis- sion of crimes? Well, that is the cur- rent proposal. The reason for the current pro- posal is that some among our ranks Continued on page 8 By Bob Bundy I write as a member of the ma- jority of the Alaska Bar Associa- tion Rules of Professional Conduct Committee who voted to propose an amendment to Alaska Rules of Professional Responsibility (ARPC) 1.2(d) and the comment to ARPC 8.4 as those rules relate to provision of legal services to cli- ents wanting to engage in activi- ties lawful under new Alaska laws relating to marijuana. Bar Counsel provided our committee with a sub- stantial amount of material from other jurisdictions, such as Oregon and Colorado, that have wrestled with the same issue and we care- fully considered this matter over a good deal of time. As every lawyer in Alaska should know, because of the recent initiative Alaska law is undergo- ing a major change with respect to the possession, use, transporta- tion and manufacture of marijua- na. An important purpose of our profession is to help members of the public understand how, in the face of a changing legal landscape, they might lawfully go about fur- thering their unique personal and business interests. Now, of course, that includes how individuals can meet the challenges posed by the adoption of Alaska's new, com- plex marijuana laws. One of these challenges stems from the conflict between Alaska's marijuana laws and federal marijuana law. Activi- ties that were previously unlawful under both federal and state law are now lawful under Alaska law while remaining unlawful under federal law. As written, ARPC 1.2(d) could be interpreted to prohibit Alaska lawyers from advising members of the public about Alaska's new mari- juana laws since many activities recently legalized under Alaska law remain illegal under federal law. ARPC 1.2(d) currently provides: A lawyer shall not counsel or assist a client to engage in con- duct that the lawyer knows is criminal or fraudulent, but a law- yer may discuss the legal conse- quences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the meaning, scope or application of the law. (Emphasis supplied.) The ARPC Committee has pro- posed rule changes to clarify the cir- cumstances under which a lawyer may provide legal services to clients dealing with Alaska's marijuana laws without exposing the lawyer to the risk of discipline. The pro- posed changes are intended to pro- vide Alaska lawyers with guidance on how to counsel and assist clients through the rapidly changing legal environment surrounding the com- Continued on page 8

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