The Kings County Bar Association in Seattle has proposed an expedited amendment to the Washington Rules of Professional Conduct that would permit a Washington state lawyer to advise a client about state drug laws that violate federal laws, and that would allow personal marijuana use by a lawyer if permitted by state law. The proposed amendment—a new Rule 8.6—provides as follows: “Notwithstanding any other provision of these rules, a lawyer shall not be in violation of these rules or subject to discipline for engaging in conduct, or for counseling or assisting a client to engage in conduct, that by virtue of a specific provision of Washington state law and implementing regulations is either (a) permitted, or (b) within an affirmative defense to prosecution under state criminal law, solely because that same conduct, standing alone, may violate federal law.”
Proposed comments to this rule clarify that this provision is specifically intended to address Washington State Initiative Measure No. 502, approved by the voters in November 6, 2012.
However you feel about marijuana policy, this amendment obviously raises the question of whether a lawyer should be permitted to ignore the basic federalism principle of federal supremacy embodied in Article VI § 2 of the United States Constitution. If the State of Louisiana decided to permit racial discrimination in the workplace in violation of federal civil rights laws, I doubt that the Seattle bar would find it acceptable for a lawyer to advise a restaurant to refuse to hire African-Americans.
