Utah Court Rules – Published for Comment
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Posted: July 27, 2023
RPC01.02. Scope of representation and allocation of authority between client and lawyer. Licensed paralegal practitioner notice to be displayed. AMEND. Clarifies the circumstances under which a lawyer may advise or assist a client with respect to Utah’s cannabis laws.
Adding a specific requirement on how we must advise our clients on a specific legal topic is absurd. No one, including the Utah Bar, OPC, or Utah Supreme Court should be micro-managing what or how lawyers advise their clients. If this change occurs, more “guidance” and restrictions on minor discrete issues will be added next.
Stop trying to control every minuscule aspect of our lives and practice. Even if you actually think this one change is somehow good or necessary, ask yourself what additional controls will be implemented next and how will those controls be enforced if these kinds of conditions are imposed on lawyers. This is a dangerous slippery slope.
I think this is a bad idea.
The rule, as it stands without amendment, already permits an attorney to counsel a client regarding the legal consequences of a course of action and assisting them to make a good faith effort to determine the validity, scope, meaning or application of the law.
We deal with potential conflicts between two different laws all the time. None of those potential conflicts of law are specifically written into the rules of professional conduct. The Rule of Professional Conduct should be generally applicable statements that govern attorney conduct in all cases without singling out any particular subject matter.
The International Cannabis Bar Association (“INCBA”) is pleased to submit this comment in support of the Utah Judicial Counsel’s proposed amendment to Rule 1.02(d) of its Rules of Professional Conduct. INCBA thanks Marialle A. Bell for her leadership in researching this issue and preparing this comment letter.
INCBA is a global cannabis bar association comprised of over 700 member attorneys representing cannabis industry participants nationwide and across the globe. See http://www.incba.org. Our breadth and depth of knowledge and experience makes INCBA uniquely situated to provide insight into the regulatory hurdles and legal issues faced by industry stakeholders. Our members represent cannabis industry participants from all facets of the industry, including cultivators, processors, manufacturers, distributors, research facilities, testing laboratories, retailers, and more, both plant-touching and ancillary. Specifically, our members provide necessary advice and counsel for industry stakeholders to understand applicable laws and regulations to ensure the greatest possible success while operating within the confines of local, state, federal, and international legal frameworks.
Through the work of its Professional Responsibility and Ethics Committee, INCBA is committed to the fair treatment of attorneys who advise or assist clients in regulated cannabis industries. With the existing friction between state and federal cannabis laws, state supreme courts and other ethical rule making authorities in states that allow legal cannabis have been encouraged to amend their Rules of Professional Conduct to recognize the lawful practice of cannabis law. Doing so helps to promote the success of the regulated cannabis industry, protect the rights of individuals consuming cannabis for adult-use or medicinal purposes, and ensure attorney-client privilege and confidentiality.
Amended rules typically address conflicting cannabis laws and eliminate disciplinary concerns attorneys commonly have when: (1) advising or assisting cannabis industry clients; (2) consuming cannabis in their personal time; and (3) investing in cannabis-related businesses. Typically, we have seen statutory approaches that prohibit discipline of attorneys for counseling clients on cannabis statutes. We have also seen state constitutional amendments that prohibit discipline of attorneys and formal ethics advisory opinions that indicate attorneys who advise and assist cannabis industry clients will not be disciplined. Most commonly, however, we have seen state Supreme Court amendments to a state’s version of ABA Model Rule 1.2 that expressly permit attorneys to advise and assist clients with cannabis-related legal issues.
INCBA is pleased that the Council is receiving additional comments and we appreciate your careful consideration of how to balance professional integrity with enforcement goals. INCBA would like to acknowledge and express our support for Utah’s Proposed Amendment to the Rules of Professional Conduct, Rule 1.2(d), which, if adopted, would explicitly permit a Utah lawyer to counsel a client regarding the validity, scope and meaning of Utah’s cannabis statutes. As written, the proposed amendment would provide fair and reasonable guidelines for Utah attorneys while allowing stakeholders to maintain ethical oversight.
INCBA and its Ethics Committee would like to serve as a resource for Utah attorneys, this Council, and the Utah State Bar. We are eager to observe Utah’s progress and the benefits any newly enacted or amended rules will provide Utah attorneys. Our Ethics Committee has been diligently working with state bar associations across the nation to create safe harbors for lawyers to advise clients, without reservation, in a manner that fully complies with the applicable Rules of Professional Conduct. Our Ethics Committee would be honored to help you create safe harbor frameworks that maximize attorney-client relationship protections and promote access to quality legal counsel. INCBA maintains a database to demonstrate how states have approached safe harbors. We invite you to explore this free resource at: https://www.canbar.org/ethics-overview.
In addition to the database, we have attached INCBA’s model amendments to Rule 1.2 and Rule 1.6 for your review.
INCBA has offered extensive continuing legal education on ethical and other legal issues surrounding the legal cannabis industry. For example, INCBA hosts an annual Cannabis Law Institute (CLI) and provides other programs to educate attorneys on the ethical challenges posed by cannabis legalization. These challenges include issues of competence; attorney-client privilege and the crime-fraud exception; conflicts of interest that can arise when attorneys invest in cannabis industry clients or during accelerated licensing applications; and advising on cannabis business banking and cash handling. INCBA continues to offer educational programming as new and relevant legal issues arise.
If this council or any members of this council wish to join INCBA, we welcome your membership. We look forward to providing you with resources and support as you evaluate and potentially implement this amended ethical rule.
Sincerely,
Ms. Shahiedah Shabazz
Executive Director, INCBA
cc:
Elizabeth Wright, Utah State Bar Executive Director Beth Kennedy, Ethics Counsel
Christine Greenwood, Ethics & Discipline Committee Chair
Billy L. Walker, Office of Professional Conduct Chief Disciplinary Counsel
INCBA proposes the following amendment to Model Rule 1.2(d) and comment to Model Rule 1.6:
Proposed Rule 1.2(d)
A lawyer shall not counsel a client to engage or assist a client in conduct that the lawyer knows is illegal or fraudulent, but a lawyer may discuss the legal consequences 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 validity, scope, meaning or application of the law.
Notwithstanding above, a lawyer may counsel and assist a client regarding a law in one jurisdiction which might conflict with a law in another relevant jurisdiction. In the event of such a conflict, a lawyer shall also advise the client regarding consequences of conflicting law and policy.
Proposed Comment to Rule 1.6
When a lawyer renders legal services in compliance with a jurisdiction’s law which might conflict with a law in another relevant jurisdiction, communications provided for the purpose of rendering those services are confidential between client and lawyer.
The fact that the laws of one jurisdiction may conflict with another does not, by itself, diminish confidentiality under these rules, or constitute grounds for an exception to attorney-client privilege.
Please note that INCBA continues also to rely on the competency and diligence requirements of Rules 1.1 (Comment 5 states that “Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners”) and 1.3 (Comment 1 states that “A lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor”) as bases for acquiring sufficient client information for the illegality assessment that Rule 1.2(d) mandates.