Practice Areas: Business Litigation, Intellectual Property Litigation, Real Estate; view more
Licensed in Colorado since: 2007
Education: Pennsylvania State University The Dickinson School of Law
Selected to Super Lawyers: 2020 - 2025 
Selected to Rising Stars: 2010 - 2016 Call today:
303-534-9000
Free Consultation Davis & Ceriani, P.C.
1600 Stout StSuite 1710
Denver, CO 80202 Visit website
Details
Kieran Lasater, a partner at Davis & Ceriani in Denver, Colorado, navigates a broad spectrum of legal landscapes, tackling everything from commercial litigation to intellectual property and real estate disputes. He also champions the cause of auto and power sports dealers. His legal journey takes him through the intricate corridors of Colorado's state trial and appellate courts, the United States District Court for the District of Colorado, the United States Court of Appeals for the 10th Circuit, and the Trademark Trial and Appeals Board at the United States Patent and Trademark Office.
With a commitment to excellence, Mr. Lasater represents various clients, from individuals to large corporations, assisting them through various legal challenges such as breach of contract, trademark disputes and trade secret claims. He proactively offers counsel on risk mitigation and dispute resolution to minimize exposure and costs before litigation arises.
Academically, Mr. Lasater's foundation was built at The Pennsylvania State University, where he earned a Bachelor of Science in the administration of justice and a minor in sociology, followed by a Juris Doctor from the Dickinson School of Law. His academic excellence was recognized with his induction into the Woolsack Honor Society and receiving the Adele and Leonard R. Blumberg Academic Scholarship.
Mr. Lasater’s legal acumen is further sharpened by his experiences as a law clerk to a trial court judge during his studies and as executive editor of the Penn State International Law Review. He has contributed scholarly articles on legal matters, including a notable piece on antitrust strategies of the Organization of the Petroleum Exporting Countries (OPEC) member countries, and has shared his insights at continuing legal education programs in Colorado, Wyoming and Pennsylvania.
Actively engaged in the legal community, Mr. Lasater is a member of the Colorado Bar Association's Ethics Committee. He plays a vital role in the Colorado Judicial Institute and helped establish the Innovation Corridor Foundation, a collaborative effort among several leading organizations. Furthermore, he is committed to giving back to the community, offering pro bono services through the U.S. District Court for Colorado’s Federal Limited Appearance Program, and imparting his knowledge as a delegate of the Faculty of Federal Advocates.
Practice areas
Business Litigation, Intellectual Property Litigation, Real Estate: BusinessFocus areas
Condominiums & Cooperatives, Landlord/Tenant, Mortgage & Refinance, Non-Compete Agreements, Short Sale, Trade Secret
- 40% Business Litigation
- 30% Intellectual Property Litigation
- 30% Real Estate: Business
First Admitted: 2005, Pennsylvania
Professional Webpage: https://davisandceriani.com/attorneys/kieran-a-lasater/
Bar/Professional Activity:
- United States Patent and Trademark Office’s Trademark Trial and Appeals Board (TTAB)
- New Jersey
- Pennsylvania
- Tenth Circuit Court of Appeals
- United States District Court for the District of Colorado
- Colorado Bar Association Ethics Committee, 2022
- American Bar Association, Colorado Bar Association, Denver Bar Association, Pennsylvania Bar Association, New Jersey Bar Association, Colorado Judicial Institute
Verdicts/Settlements (Case Results):
- Mentored associated attorneys in difficult business divorce arbitration and provided successful two-pronged litigation strategy, resulting in multi-million dollar arbitration award., 2022
- Primary counsel on inter partes trademark dispute before U.S. Patent and Trademark Office's Trademark Trial and Appeals Board., 2024
- Secured summary judgment for Hewlett-Packard Corporation on claim of respondeat superior liability in Mark DuHall v. Michael S. Samuels, et al., District Court, City and County of Denver, Case No. 2014 CV 32151, 2015
- Successfully advocate for a resolution in partnership dissolution arbitration., 2020
- Successful defense on appeal to Colorado Court of Appeals of trial court's determination that elderly unprotected person was entitled to 9-year right of redemption of property potentially lost by tax lien and sale while under a guardianship, but after guardian passed. Actarus, LLC v. Johnson, 451 P.3d 1270 (Colo. App. 2019)., 2019
- Successful defense of a $50 million jury verdict at Tenth Circuit Court of Appeals in case involving theft of trade secrets (M.D. Mark, Inc. v. Kerr-McGee Corp., 565 F.3d 753 (10th Cir. 2009))., 2009
- Secured summary judgment in excess of $1.2 million in breach of contract action for commercial printer (American Web, Inc. v. Flom Corp., et al., 2013 WL 5200588 (D. Colo., Sept. 12, 2013))., 2013
Representative Clients:
- Mentored associated attorneys in difficult business divorce arbitration and provided successful two-pronged litigation strategy, resulting in multi-million dollar arbitration award., 2022
- Assisted a partner in successfully dissolving an entity through arbitration where co-owners' relationship became untenable. , 2020
- Affirmed at the Colorado Court of Appeals an elderly disabled person's right to redeem real property (Actarus v. Johnson, 451 P.3d 1270 (Colo. App. 2019)., 2019
Special Licenses/Certifications:
- Since March of 2022, assist in ensuring the equal access to justice by volunteering in the U.S. District Court for the District of Colorado’s Federal Limited Appearance Program (FLAP). FLAP program attorneys make limited representations of pro se litigants by appearing on their behalf at the federal court for scheduling conferences, status conferences, discovery dispute hearings, and settlement conferences., 2022
- Faculty of Federal Advocate's Trial Skills Program
- National Institute for Trial Advocacy, Trial Skills Program, 2009
- National Institute for Trial Advocacy, Depositions Skills Program, 2013
Pro bono/Community Service:
- Since March of 2022, assist in ensuring the equal access to justice by volunteering in the U.S. District Court for the District of Colorado’s Federal Limited Appearance Program (FLAP). FLAP program attorneys make limited representations of pro se litigants by appearing on their behalf at the federal court for scheduling conferences, status conferences, discovery dispute hearings, and settlement conferences., 2022
- Member of the Faculty of Federal Advocates
- Founding Board Member of Innovation Corridor Foundation, Jan. 2019
Honors/Awards:
- Business Litigation, Super Lawyer, Super Lawyer, 2020
- Super Lawyers, 2024
- Business Litigation 11 Years of recognition as Super Lawyer or Super Lawyer Rising Star, Super Lawyer, Super Lawyer, 2023
- Business Litigation, Super Lawyer--Rising Star, Super Lawyer, 2016
- Business Litigation, Super Lawyer--Rising Star, Super Lawyer, 2015
- Business Litigation, Super Lawyer--Rising Star, Super Lawyer, 2014
- Business Litigation, Super Lawyer--Rising Star, Super Lawyer, 2013
- Business Litigation, Super Lawyer--Rising Star, Super Lawyer, 2012
- Business Litigation, Super Lawyer--Rising Star, Super Lawyer, 2011
- Business Litigation, Super Lawyer--Rising Star, Super Lawyer, 2010
- Business Litigation, Super Lawyer, Super Lawyer, 2022
- Business Litigation, Super Lawyer, Super Lawyer, 2021
- Woolsack Honor Society, Awarded to top 15% of each graduating class, The Dickinson School of Law, The Pennsylvania State University, 2005
- Recipient of the Adele and Leonard R. Blumberg Scholarship, Merit Scholarship
- Finalist, Up and Coming Attorneys, Law Week Colorado, 2010
- Rising Star (defined as top 2.5% attorneys under 40 and practicing 10 years or less), Super Lawyers 2010-2015, Featured in 5280 Magazine--Superlawyers, 2010
Educational Background:
- The Pennsylvania State University, University Park, PA, Bachelor of Science, Major: Administration of Justice, Minor: Sociology, Honors: Criminal Justice Honor Society, Sociology Honor Society, December 1999
White Papers:
- Irrevocable trusts are a common estate planning tool. However, in a divorce, irrevocable may not mean irrevocable for purposes of asset allocations., Irrevocable Trust v. Divorce Decree—When is Irrevocable Really Irrevocable?, 2018
- Trademark use on the Internet and in E-Commerce is at the cutting edge of trademark law, and presents some of the most interesting and complex issues in trademark law today. One of the continuing debates is whether a trademark’s use on the Internet constitutes a permissive “nominative fair use,” or, instead, infringing “initial interest confusion.” The overarching consideration and primary focus of the Lanham Act (15 U.S.C. §§ 1051-1127) is to prevent consumer confusion. With this underlying theme in mind, the conflict between “nominative fair use” (“NFU”) and “initial interest confusion” (“IIC”) can be explored., Trademarks and the Conflict Between Nominitive Fair Use and Initial Interest Confusion, Intellectual Property, 2013
- The search terms that you enter into the search engine produce two types of search results: 1) a list of “organic” search results which are culled from the Internet using complex search algorithms and which appear in a list organized by relevance; and 2) paid advertisements triggered by “Keywords” the advertisers paid the search engine for in order to have their ad triggered when the Keywords are used in a search. The organic results, or “free” search results, are advantageous because they are not manipulated by advertising dollars and so tend to be more responsive and reliable. To increase their visibility in organic search results, however, competitors can use your trademarks in the background “metadata” and “metatags” for their website (which search engine algorithms use, in part, to locate and rank organic search results), which use is not visible to the casual user. This practice has been deemed a violation of trademark rights., Using Trademarks in Online Keyword Advertising, Intellectual Property, 2012
- Trademarks are one stick in the larger bundle ofintellectual property rights, along with patents, copyrights and tradedress. Trademarks are generally definedas “[a] word, phrase, logo, or other graphic symbol used by a manufacturer orseller to distinguish its . . . products from those of others. The main purpose of a trademark is toguarantee a product’s genuineness.” BLACK’S LAW DICTIONARY 1500 (7th ed.1999). Examples of some famoustrademarks are the Ford oval, Chevrolet’s bowtie, and Apple’s apple. When these marks are applied to a product, itidentifies the product as that of the trademark owner, and none other., Trademarks and Associated Rights, Intellectual Property, 2012
Scholarly Lectures/Writings:
- CLE panel speaker at Wyoming Bar Association's annual meeting discussing Colorado's marijuana laws focusing on conflicts of law between Federal Controlled Substances Act and Colorado's marijuana enactments., Panel Speaker, Colorado Marijuana Law, Banking, Marijuana, 2014
- A discussion of cannabis and its status under Colorado law, in light of the new administration and its views on cannabis., Co-Author, A New War on Marijuana?, Law Week Colorado, April 20, 2017, 2017
- The ability of aggrieved citizens to resolve their legal disputes in a court of law is a basic tenet of our society. For those participating in Colorado’s nascent Marijuana Industry, however, Colorado’s courts may close their doors to resolving disputes because of the remaining illegality of marijuana under federal law. As we know, Colorado voters approved medical marijuana by popular vote on November 7, 2000. Eighteen states, and the District of Columbia, have legalized or decriminalized medical marijuana in one form or another. On November 6, 2012, Colorado voters went further and approved recreational marijuana. Washington is the only other state to have also legalized recreational marijuana. On October 19, 2009, United States Attorney General Eric Holder’s office issued a memorandum to the U.S. attorneys across the country, which gave guidelines for the use of discretion in prosecution of federal marijuana laws in states that have enacted medical marijuana laws. Importantly, the memo did not create a legal defense to federal law or provide new rights, and it was directed solely at medical marijuana. Therefore, the memo does not change the basic illegality of marijuana under federal law. On August 29, 2013, the Justice Department announced that it would not initiate civil action to challenge the Colorado and Washington marijuana laws. This display of prosecutorial discretion does not change, however, marijuana’s continuing illegality under the CSA. A new administration may well see fit to reverse course and challenge Colorado’s and Washington’s marijuana laws. It has long been the law that where a contract involves an illegal purpose, courts will not enforce the contract for or against either party to it. The courthouse doors are closed. The policy behind the rule is self-evident—courts of law or equity will not countenance illegal conduct. Today in Colorado, thousands of contracts are being entered into regarding the Marijuana Industry. That is how business gets done, and business is booming in Colorado. Of course, contracts do not always go as intended and disputes arise which may end up before Colorado courts. If courts close their doors to disputes in the Marijuana Industry, that may leave the parties without access to civil justice. Several courts in Colorado have already had the chance to consider the issue. The United States Bankruptcy Court for the District of Colorado has ruled that its doors are closed to the Marijuana Industry. In that case, the debtor filed for bankruptcy protection and was engaged in the business of renting warehouse space to, among other tenants, medical marijuana growers. The primary secured creditor moved to dismiss the bankruptcy case on the grounds of unclean hands and bad faith, arguing that marijuana is illegal under federal law. The court held that, notwithstanding the recent legislative enactments and related amendments to the Colorado Constitution allowing for medical and recreational marijuana, unless and until Congress amends the CSA, the debtors were engaging in conduct that violated federal criminal law by renting space to and receiving rents from medical marijuana growers. Therefore, the bankruptcy court would not be called upon to provide the debtor with the protections of the Bankruptcy Code due to the resulting unclean hands of the debtor. Similarly, prior to the recreational marijuana enactments, Judge Pratt of the District Court for Arapahoe County held that the court would not enforce a contract which dealt with medical marijuana due to the doctrine of illegality. In Haeberle, the plaintiff was a medical marijuana grower, and the defendant was a retail seller. The plaintiff brought a claim for breach of contract after he sold marijuana to the defendant, who failed to pay for it. Following a trial, Judge Pratt on his own initiative ruled that the contract was void as against federal public policy and would not be enforced by the court; i.e., the courthouse doors were closed. Although Colorado has declared that its public policy does not render marijuana-related contracts void and unenforceable, that is not dispositive As Judge Pratt noted, federal public policy can render a contract void as illegal. Coats v. Dish Network, L.L.C. is also instructive. There, the Colorado Court of Appeals held that despite Colorado’s medical marijuana law, an employee with a medical marijuana card can still be lawfully terminated for a positive drug test, because of marijuana’s continuing illegality under federal law. The courts of other states that have legalized forms of marijuana use have also recognized the same conflict and preemption. No reported Colorado case has gone the other way, and the issue is currently being litigated in civil cases across the state. In a very real sense, participants in the Marijuana Industry are presently operating in the Wild West. Unless and until Congress amends the CSA to provide that medical and/or recreational marijuana that is lawful under state law will not be in violation of federal law, federal law will continue to trump Colorado’s marijuana laws, and participants in the industry may be without a court of law to settle and resolve legal disputes. In today’s political climate in Washington D.C., any action seems difficult to achieve, even regarding the most popular bi-partisan issues of the day. In early March, 2013, U.S. Representatives Diana DeGette (CO-D) and Mike Coffman (CO-R) re-introduced the “Respect States’ and Citizens’ Rights Act,” which bill would amend the CSA to resolve the existing conflict. The bill’s future is unclear at this time. As a potential practical alternative until federal action is taken, the Marijuana Industry could include Alternative Dispute Resolution (“ADR”) provisions in their contracts, requiring disputes to be submitted to arbitration and/or mediation. This temporary solution is not ideal, however, because parties to the dispute would not be able to call on the courts to force a reluctant opponent to attend an arbitration or mediation, nor to enforce and collect an award. However, if the parties voluntarily submitted their dispute to ADR, the neutral third-party would not be constrained by the same legal doctrine of illegality, as are the courts, and the parties would retain access to some form of civil justice. Due to the continuing conflict between Colorado and federal law regarding marijuana, some Colorado courts have closed their doors to the resolution of legal disputes involving marijuana. Until Congress amends the Controlled Substances Act, federal law will trump Colorado’s conflicting state laws on marijuana. Until a change occurs on the federal level, participants in the industry should consider the use of ADR provisions in their contracts. This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved., Author, Courthouse Doors Closed to Pot Industry, Law Week Colorado, Marijuana/Constitutional Law, 2013
- News of Nebraska and Oklahoma suing Colorado for legalizing recreational marijuana spread like a windswept wildfire on the prairie. The case raises to the forefront the lingering question of the impacts of the Supremacy Clause and the federal Controlled Substances Act (“CSA”) on the several states whose voters have passed marijuana legalization or decriminalization measures. The suit, filed as an original action in the U.S. Supreme Court on December 18, 2014, is novel in the debate over marijuana, and presents the Justices with thorny questions regarding Federalism, states’ inherent and retained rights under the 10th Amendment, as well as federal investigative and prosecutorial discretion. The CSA, enacted in 1970, places drugs into five schedules. Marijuana is on Schedule I, and therefore outright banned, along with drugs like LSD and heroin. Beginning with California in 1996, 23 states and the District of Columbia—including Colorado in 2000—have enacted some form of medical marijuana legalization/decriminalization. In 2012, Coloradans passed Amendment 64, legalizing recreational marijuana, and, joined by Washington, became the first states in the Union to do so. Most recently, Oregon and Alaska legalized recreational marijuana this year. Initiatives in Nebraska and Oklahoma attempting to place medical marijuana amendments on the ballot for 2014 failed for lack of sufficient signatures. Proponents in each state pledged to raise the initiatives again in 2015. To implement Colorado’s recreational marijuana amendment, the Colorado Legislature tasked the Department of Revenue and the Department of Public Health and Environment with regulating marijuana cultivation, sale and taxation. Through mid-December, Colorado has collected approximately $30 million in tax revenue on the sale of marijuana; however, due to a provision in TABOR, the State may be required to refund the taxes. With respect to the federal government’s enforcement of the CSA, the Obama Administration has issued several policy statements (popularly termed the “Cole Memos”), indicating the Executive Branch will focus on eight law enforcement and prosecutorial priorities (“the Great Eight”), as opposed to vigorously enforcing federal marijuana laws. These policy objectives include: Preventing the distribution of marijuana to minors; Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels; Preventing the diversion of marijuana from states where it is legal under state law in some form to other states; Preventing state-authorized marijuana activity from being used as cover or pretext for the trafficking of other illegal drugs or other illegal activity; Preventing violence and the use of firearms in the cultivation and distribution of marijuana; Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; Preventing growing marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and Preventing marijuana possession or use on federal property. Additionally, the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) issued a similar policy statement regarding money laundering laws, all in an effort to allow banks to service the growing marijuana industry. On December 11, 2014, the Administration indicated in yet another policy statement that it will no longer prosecute federal marijuana laws on Tribal lands, even where the Tribal lands lie in states that have not legalized marijuana. There are six tribal reservations in Nebraska, raising the question of whether Nebraska would sue a tribe that legalizes marijuana on its reservation. Oklahoma does not have Indian reservations, as they were dissolved prior to statehood. As mere policy statements, however, the Administration’s pronouncements of prosecutorial and investigative priorities can carry no legal force or effect, and could be reversed by future administrations. In order to allow banking for the marijuana industry, Colorado recently took steps to create the world’s first credit union for the industry, called the “Fourth Corner Credit Union.” Although it has been issued a state charter, it awaits insurance from the National Credit Union Administration, a process which can take two years. In the interim, it will be able to operate pending the insurance decision. With the Colorado Supreme Court’s addition of Comment 14 to Colorado Rule of Professional Conduct 1.2 in March of this year, Colorado attorneys are now able to counsel and represent the marijuana industry without fear of running afoul of the ethics rules. The U.S. District Court for the District of Colorado, however, recently proposed a rule opting out of Comment 14, which, if adopted, would bar attorneys appearing in the federal court from advising clients in the industry with regard to future conduct. As an example of the schism between state and federal courts, the U.S. Bankruptcy Court has on at least two occasions dismissed bankruptcy petitions filed by marijuana industry participants, based on their violation of federal marijuana laws. With regard to the lawsuit brought by Nebraska and Oklahoma, one of the areas of the Supreme Court’s original and exclusive jurisdiction, are disputes among the several states. The complaint brings two claims: 1) declaratory judgment; and 2) injunctive relief. In particular, Nebraska and Oklahoma ask the Justices to declare Amendment 64 unconstitutional under the Supremacy Clause of the U.S. Constitution on two bases: 1) that Amendment 64 stands as an obstacle to the accomplishment of the full purposes and objectives of Congress in enacting the CSA; and 2) that it stands as an obstacle to the accomplishment of the full purposes and objectives of Congress (and the overall U.S. government) in entering into several foreign treaties regarding the prohibition of marijuana. For injunctive relief, the plaintiff states ask the Court to enjoin Colorado from implementing Amendment 64 and any enabling statutes and regulations. Interestingly, the complaint is silent with regard to the earlier-enacted Amendment 21 allowing medical marijuana. Currently, the Colorado Supreme Court is considering its first case on medical marijuana involving an employee’s use of medical marijuana, which case touches on issues of preemption (Coats v. Dish Network). Nebraska and Oklahoma cite the alleged increase in interstate trafficking of Colorado marijuana—and the attendant strain on law enforcement, judicial and corrections resources—as the grounds for the suit. Anecdotally, reports have surfaced of profiling Colorado drivers visiting surrounding states which have not legalized marijuana, including Wyoming, Kansas, Oklahoma and Nebraska. Further, Washington, Oregon and Alaska (the other states with recreational marijuana laws) are not named as parties to the suit, because Nebraska and Oklahoma do not share a common border with them. The Supreme Court has not yet accepted the case; however, given the importance of the issues presented—and that approximately half of the states could potentially be affected—the Court will likely take the case. The chances of the Court taking the case would increase if other states seek to join in the action, however, the merits of the underlying legal questions would not be affected. At its essence, the case presents the question whether Amendment 64—and, by implication, the various other enactments decriminalizing marijuana across the country—presents a “positive conflict” with the CSA. If the Court determines a positive conflict exists, Amendment 64 will be declared unconstitutional under the Supremacy Clause. If it is not a positive conflict, the Court need not declare it unconstitutional. On its face, the CSA does not “occupy the field” of drug laws; accordingly, there is no express or field preemption of Amendment 64. Instead, the issue is whether Amendment 64 stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the CSA. Another form of positive conflict is where a person cannot comply with both state and federal law simultaneously; however, that form of conflict is not implicated with marijuana laws, as one can simply abstain from use or possession. In areas of traditional states’ rights, such as public health and police powers, there is a presumption against preemption—a presumption which Amendment 64 will enjoy. Further, Amendment 64 does not portend to affect the CSA, nor does it inhibit federal enforcement of the CSA, should the federal government decide to enforce its laws. On the other hand, by allowing, and, perhaps, facilitating the perceived expansion of the cultivation, sale and use of marijuana, a logical argument can be made that Amendment 64 stands as an obstacle to the full purposes of Congress’ ban on marijuana under the CSA. Given the Court’s divergent views on issues generally, and especially states’ rights, it is difficult to anticipate how the Court may come down on the issue. The issue will be perhaps especially difficult for those inherently conservative Justices who have historically championed states’ rights. The ramifications of declaring Amendment 64 unconstitutional are tremendous, and likely impossible to fully foresee. The potential effects on Colorado and the other states whose citizens have decided federal drug policy on marijuana is outdated and imprudent could only be described as disastrous. On the other hand, if the Court determines there is no positive conflict, a long-lingering question will be resolved and other states will likely be emboldened to move towards legalization. The mere fact of the pending suit may spur Congress to amend the CSA to remove marijuana from Schedule I. Given the partisan wrangling recently displayed in Congress, however, swift action is unlikely. The Obama Administration has shown its willingness to exercise the unilateral Executive Powers to the limits of the Constitution—most recently with foreign policy towards Cuba, and, before that, immigration reform—and so perhaps will take further action. Regardless of the eventual outcome, what is assured is Colorado’s place at the spear’s tip of the debate over individual and State’s rights. This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved., Author, Border Wars--Colorado Weed Under Fire, Law Week Colorado, Marijuana/Constitutional Law, 2014
- Two years ago, the National Association of Dealer Counsel’s Defender published an article discussing some of the problems associated with erroneous vehicle history reports (“VHRs”). The article concentrated primarily on Carfax due to the large segment of the industry that it occupies, and, in particular, the “Total Loss” designation Carfax assigned to vehicles with only minor damage. Since that time, I have been contacted numerous times to provide assistance with false VHRs and in correcting the reports, as well as to provide information as to available remedies they might have for the lost value they suffered in a sale or trade-in. Based on the volume of inquiries, I prepared this update. Sample of Dealer and Individual Experiences The following are summaries of some of the experiences of dealers and consumers who contacted me: An attorney contacted me on behalf of an estate client. The assets of the estate included a 2010 Mercedes Benz E550, and the Carfax VHR indicated severe damage from an incident that was, in fact, rather minor. Efforts to have Carfax correct the report proved futile. Another attorney shared his experience with a client with a 2005 Mercedes Benz G55 AMG, which, when purchased, had a clear Carfax VHR. However, when the client attempted to trade in the vehicle, the VHR showed a “Total Loss”. After numerous communications with Carfax on behalf of his client, the attorney was able to secure a corrected VHR. A used car dealer specializing in Jeep Wrangler fix-and-flips, purchased a 2006 Jeep Wrangler Rubicon at auction with light body damage and a clear title. After repairing the Jeep, he was forced to sell it for half of its value due to a “Total Loss” designation on the Carfax VHR, which he was unsuccessful in getting removed. Another was experiencing financial difficulty and attempted to refinance a loan on his Land Rover LR3. The loan was denied due to a negative and erroneous Carfax VHR. Carfax refused to disclose the insurance company from whom it received the negative information. The client then filed a complaint with his state’s department of insurance, but received no help because the insurance company indicated the report error was on Carfax’s end. After additional attempts to secure a corrected report from Carfax failed, the client eventually had to sell a beloved 1956 Ford Thunderbird in order to stabilize his financial situation. The day after selling the T-Bird, Carfax corrected the report. The foregoing are some of the real-world effects of a false VHR. Some of the individuals affected were unable to secure any resolution from Carfax. Others were able to secure corrected VHRs but only after much time, effort, and aggravation. Yet others were directly damaged by a loss in value of their vehicle in a transaction. Carfax’s Perspective In researching this update, I contacted Carfax and spoke with its Director of Communications, Larry Gamache, on June 2 and 3, 2015. Gamache has been with the company for sixteen years, and, when first asked, he said was not aware of the “Total Loss” designation issue discussed in the original article. After he had conducted research, Gamache and I spoke again, and, when asked about whether Carfax withdrew the “Total Loss” designation policy on January 10, 2013, as indicated at that time by Carfax’s then-General Counsel Steven Blumenthal, Gamache stated that Carfax had withdrawn the information to conduct further analysis. Gamache indicated that Carfax did not make unilateral determinations of a “Total Loss” designation, but, instead, only reported information received from insurance companies. He also said that over the next thirty to sixty days, Carfax would revise its VHRs to provide consumers with more context in the way of a list of reasons why an insurance company might declare a vehicle as a “Total Loss,” and encourages consumers to secure an inspection prior to any purchase. Carfax’s explanation was thorough, but did not explain some of the experiences detailed above. Gamache additionally indicated that Carfax has a team of approximately eighteen to twenty individuals assigned to addressing concerns with the contents of VHRs, many times in twenty-four to forty-eight hours. The process can be started by utilizing the Carfax webpage and clicking on the “help” button at the top of the landing page. However, this is not a new change in response to issues; as Gamache indicated the team has been in existence for a decade or more. Litigation Update My original March 2013 article discussed several ongoing and past cases involving Carfax. Since that time, a large group of dealers (now 1048 and counting) filed a $350 million mass action against Carfax alleging antitrust violations. (Maxon Hyundai Mazda, et al. v. Carfax, Inc., 1:13-cv-02680-AJN-RLE (S.D. N.Y.)). The lawsuit asserts that Carfax, through a series of exclusive relationships with key auto industry players (such as thirty-seven of forty manufacturers’ certified pre-owned programs, Autotrader.com, and Cars.com), effectively forces dealers to use Carfax for VHRs, which reports are inaccurate and are offered at artificially inflated prices due to the lack of free market competition. Further, the suit alleges that Carfax then uses the illgotten inflated profits, ironically, to blanket the airwaves with ads that disparage the same dealers that are forced to contract with Carfax for VHRs. Based on a review of the court’s docket entries, as well as an interview with the plaintiffs’ counsel and NADC member, Leonard Bellavia, Esq., the case is at the beginning of the discovery phase after the dealers defeated Carfax’s motion to dismiss the second amended complaint. The case has been pending for over two years, and, after the suit was filed, many of the manufacturers, as well as Autotrader.com and Cars.com, voluntarily ended their exclusive relationships with Carfax, perhaps as a direct result of the claims asserted in the suit. When asked about the erroneous nature of many VHRs, Bellavia stated that it was not the main focus of the mass action, but rather “the absence of free competition in the VHR market results in a disincentive for Carfax to build a better mouse trap.” It is this lack of competition—with Carfax enjoying roughly ninety percent of the VHR market—that fosters what, to many, appears to be a lack of genuine interest in correcting erroneous VHRs when alerted by dealers and consumers. With the breakup of the exclusive arrangements between Carfax and the manufacturers, as well as Autotrader.com and Cars.com, the additional competition should result in more accurate VHRs, which represents an important tool for dealers and consumers alike. When asked about Carfax’s perspective on the case, Mr. Gamache was not able to comment. Conclusion Even years after Carfax first began its Total Loss designation policy, dealers and consumers are still suffering the results of erroneous VHRs. Due to the amount of damages experienced by any single consumer or dealer, individual litigation makes little economic sense. The prominence Carfax has enjoyed has resulted in exposure to numerous civil actions, most recently the antitrust mass action. It will be interesting to see if the pending mass action is able to effectuate meaningful change in the growing VHR industry or if additional cases will be necessary in the future., Author, Erroneous Vehicle History Reports--An Update, The National Association of Dealer Counsel--The Defender, Auto Industry, 2015
- In America’s history, there are scarce examples of states making decisions that stand in direct conflict with the Federal government—a civil war and several Constitutional amendments were the result of the biggest such conflict. Today, roughly half of the states have decided that despite the Federal prohibition against marijuana, their citizens should be allowed to possess and consume marijuana in some form, typically medical marijuana. Four states, including Colorado, have gone one step further and decided their citizenry may also use marijuana recreationally. The states that have legalized or decriminalized marijuana in some form have made a decision which appears to stand as a positive conflict with the Federal Controlled Substances Act (“CSA”). This article will discuss the conflicts of law issues presented, as well as discuss a recent Supreme Court case which may resolve the conflict. Supremacy Clause “This Constitution, and the Laws of the United States . . . and all Treaties made . . . under the Authority of the United States, shall be the supreme Law of the Land; . . . .” U.S. CONST. Art. VI, cl. 2 (emphasis added). In so providing, the Founding Fathers recognized through their own hard-learned lessons that for a Federal system to be successful, it requires one final word on an issue. Without such a bright line, a citizen could be subject to a multiplicity of conflicting laws on the same subject, with chaos ensuing. Flowing from the Supremacy Clause, cases presenting the question of what law controls between potentially conflicting state and Federal law created a body of case law regarding “preemption.” Preemption takes two primary forms—field preemption and positive conflict preemption. In the former, Congress either expressly declares that the Federal law will be the only word on a subject, or, through the comprehensive nature of the legislative scheme, Congress impliedly intends to occupy the field. With regard to positive conflict preemption, it results by operation of the Supremacy Clause where it is either impossible to comply with both state and federal law, or where a state law “stands as an obstacle to accomplishment and execution of the full purposes and objectives of Congress.” Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995). Because one can comply with both Federal and state marijuana law by not using or possessing marijuana, only the later is at issue. Federal Law on Marijuana Congress enacted the CSA in 1970 as a comprehensive regulatory scheme and placed drugs into five schedules. Marijuana is on Schedule I, and, therefore, outright banned along with drugs like LSD and Methamphetamine. In the CSA, Congress expressly declared that it did not intend to occupy the field of drug laws, thereby allowing states to legislate in the area, provided that the state laws do not “stand[] as an obstacle to accomplishment and execution of the full purposes and objectives of Congress.” Since its enactment, all legislative efforts to remove marijuana from Schedule I have proved futile. In at least two Supreme Court cases, efforts to avoid the CSA’s ban on marijuana have failed. In U.S. v. Oakland Cannabis Buyer’s Co-Op, 532 U.S. 483 (2001) the Supreme Court examined the CSA, and, noting the requirement that to be placed on Schedule I the Congress had to make the determination that marijuana has no medical value, ruled that there is no common law medical necessity defense to a violation of the CSA. Several years later in Gonzalez v. Raich, 545 U.S. 1 (2005), the Supreme Court examined the CSA with regard to whether the Commerce Clause (which allows Congress to regulate commerce among the states) allowed Congress to ban even purely intra-home activity such as cultivating and consuming marijuana. The Supreme Court held that the activity, though perhaps purely private when viewed in isolation, can affect interstate commerce in the aggregate, and, therefore, Congress has the power to ban individuals from growing and using marijuana in their own homes. The Obama Administration has issued guidelines for its prosecutors and the banking industry which indicate that Federal priorities do not presently include enforcing the Federal prohibition as long as the activity does not offend certain priorities, termed the “Great Eight.” These include, among others, avoiding use by minors, precluding drug cartel involvement in the industry, avoiding the presence of marijuana on federal lands, as well as preventing the interstate trafficking of marijuana. As mere policy statements of one administration, however, the guidance has no legal force or effect. Because the states that have legalized or decriminalized marijuana have allowed an industry which potentially “stands as an obstacle to accomplishment and execution of the full purposes and objectives of Congress[,]” a positive conflict may exist. The issue could be squarely addresses this year by the Supreme Court. Nebraska and Oklahoma v. Colorado On December 18, 2014, Nebraska and Oklahoma sued Colorado in the Supreme Court, which has original and exclusive jurisdiction for disputes among the states. The complaint brought two claims: 1) declaratory judgment; and 2) injunctive relief. Nebraska and Oklahoma asked the Justices to declare Colorado’s recreational marijuana laws unconstitutional under the Supremacy Clause on two bases: 1) that the enactments stand as an obstacle to the accomplishment of the full purposes and objectives of Congress in enacting the CSA; and 2) that they stand as an obstacle to the accomplishment of the full purposes and objectives of Congress (and the overall U.S. Government) in entering into certain foreign treaties regarding the prohibition of marijuana. The Supreme Court has not yet accepted the case; however, it did ask the Solicitor General to brief the issue, which may indicate an inclination to accept the case. The importance of the issues presented—roughly half the states could be affected—militates towards the Court hearing the case. If the Curt does take the case, the issue of preemption will be center stage and ripe for determination. Conclusion The national social and political experiment regarding marijuana presents a rare example of a potential positive conflict of law between the states and Federal government. If not resolved politically in the halls of Congress, the Supreme Court may have the last word later this year. This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved., Author, Conflicts of Law, A Colorado Example, National Paralegal Reporter, Marijuana, Constitutional Law, 2015
- With new ballot initiatives surrounding marijuana appearing every year, the legal issues surrounding marijuana will become more and more relevant to our nation’s employers, The federal Controlled Substances Act (“CSA”) was enacted in 1970 and governs drugs and their use by placing them into five schedules. Marijuana is on Schedule I, and therefore outright banned, along with drugs like LSD and heroin. Beginning with California in 1996, 23 states and the District of Columbia—including Colorado in 2000—have enacted some form of medical marijuana legalization/decriminalization. In 2012, Colorado voters passed Amendment 64, legalizing recreational marijuana, and, joined by Washington, became the first states in the Union to do so. Most recently, Oregon and Alaska legalized recreational marijuana, as did Washington, D.C. To implement Colorado’s recreational marijuana amendment, the Colorado Legislature tasked the Department of Revenue and the Department of Public Health and Environment with regulating marijuana cultivation, sale and taxation. Through mid-December 2014, Colorado had collected approximately $30 million in tax revenue on the sale of marijuana. From January 1, 2015 to mid-May, Colorado had collected approximately $88 million in tax revenue for 2015. The tax rate for recreational marijuana is approximately 28% (plus any local tax), while the tax rate for medical marijuana is 2.9% (plus any local tax). Coloradoans 21 or older can purchase up to 1 ounce of marijuana at a time, and can grow up to 6 flowering plants at a time. They may consume marijuana in private, but the public consumption of marijuana remains illegal. Additionally, driving under the influence of marijuana remains illegal. With respect to the federal government’s enforcement of the CSA, the Obama Administration has issued several policy statements (popularly termed the “Cole Memos”) indicating the Executive Branch will focus on eight law enforcement and prosecutorial priorities (“the Great Eight”), as opposed to vigorously enforcing federal marijuana laws. These policy objectives include: Preventing the distribution of marijuana to minors; Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs and cartels; Preventing the diversion of marijuana from states where it is legal under state law in some form to other states; Preventing state-authorized marijuana activity from being used as cover or pretext for the trafficking of other illegal drugs or other illegal activity; Preventing violence and the use of firearms in the cultivation and distribution of marijuana; Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; Preventing growing marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and Preventing marijuana possession or use on federal property. On December 11, 2014, the Administration indicated in yet another policy statement that it will no longer prosecute federal marijuana laws on Tribal lands, even where the Tribal lands lie in states that have not legalized marijuana. Additionally, on February 14, 2014, the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN) issued a similar policy statement regarding money laundering laws, all in an effort to allow banks to service the growing marijuana industry. As mere policy statements, however, the Administration’s pronouncements of prosecutorial and investigative priorities can carry no legal force or effect, and could be reversed by future administrations. In order to allow banking for the marijuana industry, Colorado recently took steps to create the world’s first credit union for the industry, called the “Fourth Corner Credit Union.” Although it has been issued a state charter, it awaits insurance from the National Credit Union Administration, a process which can take two years. In the interim, it will be able to operate pending the insurance decision. With the Colorado Supreme Court’s addition of Comment 14 to Colorado Rule of Professional Conduct 1.2 in March of 2014, Colorado attorneys are now able to counsel and represent the marijuana industry without fear of running afoul of the state ethics rules. The U.S. District Court for the District of Colorado, however, opted out of Comment 14, and, therefore, attorneys appearing in the federal court are barred from advising clients in the industry with regard to future conduct. As an example of the schism between state and federal courts, the U.S. Bankruptcy Court for Colorado has on at least two occasions dismissed bankruptcy petitions filed by marijuana industry participants, based on their violation of federal marijuana laws. Colorado employers and employees recently received more guidance on marijuana in the workplace when, on June 15, 2015, the Colorado Supreme Court upheld the termination of an employee for testing positive for marijuana. The court held that despite the facts that the employee possessed a Colorado medical marijuana card, and used marijuana after work hours, the activity was not “lawful” under the CSA, and, therefore, not lawful conduct under Colorado’s statute which protects employees from termination for lawful conduct they engage in during non-work hours. With regard to Washington, residents 21 and older may possess up to 1 ounce of marijuana. Public consumption is banned, as in Colorado. Like in Colorado, employees are not provided protection from termination for its consumption. The state taxes retail marijuana sales at thirty-seven percent (37%). Washington, D.C. is one of the most recent jurisdiction to have legalized the use of recreational marijuana, and, as of February 26, 2015, residents can possess up to 2 ounces of marijuana, and grow 6 plants, only 3 of which can be mature at any given time. Sales of the drug are illegal, but transfers of an ounce or less are legal. Approximately twenty percent of Washington D.C. sits on federal lands, and, therefore, possession of marijuana in those areas remains illegal. Washington D.C.’s move is especially thorny as Congress has oversight over the District. As recently as July 1, 2015, recreational use in Oregon became legal under its laws. Every year new ballot initiatives appear in more and more states, and, therefore, the legal issues surrounding marijuana will become more and more relevant to our nation’s employers, especially those tasked with managing their legal risks and compliance. It is the company’s in-house counsel, after all, who will be charged with understanding the interplay between federal and state law on marijuana, and assisting the company in safely navigating the ever-changing tides of marijuana law. This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved., Co-Author, Marijuana in Colorado, Washington, DC and Beyond: A Legal Overview, Inside Counsel, Marijuana, Ethics, Constitutional Law, 2015
- The cultivation, possession, transportation, or use of marijuana remains illegal under federal law, which raises multiple ethical issues for lawyers. Various states have legalized the use marijuana; many for medicinal purposes, and a few for recreational use. The cultivation, possession, transportation, or use of marijuana remains illegal under federal law, which raises multiple ethical issues for lawyers. 21 U.S.C. § 811. The Supremacy Clause of the U.S. Constitution unambiguously provides that if there is any conflict between federal and state law, federal law prevails. Gonzales v. Raich, 545 U.S. 29 (2005). Thus, for purposes of ethical analysis, the use of marijuana still must be considered a crime. One set of issues—to be dealt with in a later article in this series—regards advising clients with respect to marijuana-related businesses. The question presented by this article is, however, more fundamental: is it an ethical violation for a lawyer to commit a federal offense by using marijuana? ABA Model Rule 8.4 (“Misconduct”) provides: It is professional misconduct for a lawyer to: . . . (b) commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects . . . . Comment [2] provides the following elaboration: Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of characteristics relevant to the law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. Thus the question presented is whether smoking or otherwise consuming marijuana, without more, rises to the level of “moral turpitude.” The general view is that it does not. E.g. Colorado Bar Association Formal Ethics Opinion 125 (lawyers use of medical marijuana, without more, does not violate Colorado Rules of Professional Conduct, which are patterned after the ABA model rules). A lawyer can, therefore, ethically use marijuana on Friday night and, if sober, return to work on Monday morning without committing an ethical violation. A lawyer who uses marijuana over lunch and returns to work that afternoon while still under the influence of marijuana probably does violate the rules of professional conduct, however. First, ABA Model Rule 1.1 (“Competence”) requires lawyers to be competent. A lawyer under the influence of marijuana likely is not. Second, such conduct would also likely violate ABA Model Rule 1.16 (“Declining or Terminating Representation”), which requires the lawyer to terminate representation when “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.” A lawyer under the influence of marijuana is materially impaired, and thus must not practice law while in that condition. A lawyer’s use of marijuana may also affect the lawyer’s colleagues. ABA Model Rule 8.3 (“Reporting Professional Misconduct”) requires that a colleague report the ethical violations of another attorney when “a lawyer . . . knows that another lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to that lawyer’s . . . fitness as a lawyer in other respects.” Substance abuse is one area where reporting a colleague may be required. Accordingly a lawyer regularly using marijuana while practicing law may create a burden on his or her colleagues. In conclusion, the act of using marijuana, without more, does not appear to create an ethical violation. But there may be more. This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved., Co-Author, The Ethics of a Lawyer's Use of Marijuana, Inside Counsel, Marijuana, Ethics, 2015
- On September 20, 2015, Volkswagen (“VW”), the world’s largest automaker, admitted publicly it had rigged 11 million diesel cars manufactured after 2008 to trick emissions testing facilities and regulators into believing they complied with emissions regulations. On September 23, 2015 VW’s CEO, Martin Winterkorn, resigned, but disclaimed knowledge of the trickery. German authorities initiated a fraud investigation against both him and the company. Regardless of the outcome of the investigation, VW’s image has been deeply tarnished, and its stock value lost 25% in one week alone. The scandal’s effects are being felt around the world, as well as here in Colorado. Colorado consumers who purchased the affected vehicles—and the car dealers that actually sold the vehicles and who were unaware of the manufacturer’s mischief—are potentially left holding the bag. How it Works Apparently, software was designed and loaded into the vehicles’ Electronic Control Units (“ECU”) for 2.0 liter TDI engines in the Jetta, Beetle and Golf for years 2009-15, the Passat for 2014-15, and the Audi A3 for years 2009-15. The ECU would then detect when emissions tests were underway, based on inputs from wheel speed sensors and other electrical sensors. When the ECU detects that an emissions test is underway, it automatically switches to one engine map (the program used to run the electronic controls associated with the engine) to minimize nitrogen oxide (“NOx”) emissions. By doing so, the vehicle produces less power (by activating certain emissions controls), but cleaner emissions, thereby passing the emissions test. Thereafter, the engine reverts to the default engine map (deactivating certain emissions controls), which results in more power and better fuel economy, but, as a result, produces 10-40 times the acceptable levels of NOx. Researchers at West Virginia University, commissioned by a clean energy group (International Council on Transportation) to test several diesel vehicles, first uncovered the software after their tests revealed elevated emissions levels during live on-road testing. VW denied the scam for fourteen months until its recent admission of guilt. What is unclear is why VW resorted to computer games in order to meet the new Tier 2 rules under the Clean Air Act, as opposed to simply engineering a cleaner diesel. As with other automaker scandals of the past, cost and profit will likely loom large. At present it is unclear how far up or down the management hierarchy knowledge of the scheme travelled. What is clear, however, is that dealers unwittingly sold 480,000 affected vehicles domestically, and 11 million worldwide. Effects on Colorado Dealers On September 25, 2015, the first Colorado class action against VW was filed in the U.S. District Court, asserting claims under the Colorado Consumer Protection Act (related to deceptive trade practices and misrepresentation), as well as two counts of fraud (false representation and failure to disclose), breach of express and implied warranties, and breach of contract. Dozens of other class actions were filed across the country, with some naming the selling dealership as well. All dealers, including those in Colorado, have new and potentially used inventory they cannot sell. VW has released the dealers from sales quotas; however, that does nothing to compensate dealers for lost sales and diminished goodwill. Many customers may not distinguish between its innocent local VW dealer and the admittedly guilty manufacturer, and the dealer may suffer guilt by association. Anecdotally, some consumers are attempting to revoke acceptance of the affected vehicles or rescind the transaction, likely on the theory of fraud in the inducement or, perhaps, that the purchase fails of its essential purpose. Considerations for Colorado VW Dealers The relationship between franchise dealers and the manufacturers can be strained. Manufacturers oftentimes arm twist dealers into various sales quotas and other targets, using both the carrot and the stick. Similarly, manufacturers sometimes force dealers to construct expensive new showrooms in an effort to maintain brand appeal. The natural tension between Colorado VW dealers and VW may now be further heightened as dealers experience customer traffic slow down and sales drop. VW’s standard contract with its dealers contains a section entitled “Compliance with Ethical Standards” in which VW affirmatively represents that it will safeguard and promote the reputation of VW and its products, as well as refrain from all conduct which might be harmful to the reputation and marketing of its cars, or otherwise inconsistent with the public interest. Additionally, it provides that VW will avoid all discourteous, deceptive, misleading, unprofessional or unethical practices. The negative publicity associated with VW’s admission, as well as its apparent failure to abide by its own published ethical standards, might give the upper hand to any Colorado dealer with an existing dispute with VW—i.e., facility upgrades, sales performance issues, warranty claims, territory disputes, or any of the sundry other disputes between dealers and their franchisors. VW will pay dearly for its deception, both at the hands of government regulators and in the eyes of the public. Its Colorado dealers will also unfairly feel the brunt of the scandal, although free of any knowledge or wrongdoing. Whether Colorado VW dealers are also called on to defend against civil actions brought by consumers is yet to be seen. As the public face of VW, however, the dealerships will have to do the hard work of repairing the relationship and prestige of the VW brand. This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved., Author, Mistruths in Engineering--The VW Scandal, Law Week Colorado, Automobile, 2015
- “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . .” In the prior installment in this series, we discussed the ethical considerations triggered by a lawyer personally using marijuana. To summarize, the ethical prohibition regarding criminal conduct by the attorney only applies to crimes that reflect on the lawyer’s honesty, trustworthiness, or fitness to practiced law (so-called “crimes of moral turpitude”). Our conclusion was that a lawyer using marijuana, without more, does not create an ethical problem under Rule 8.4(b), as long as the attorney is not under the influence while practicing. The analysis is different regarding a lawyer advising a client regarding marijuana-related activities. Rule 1.2(d) provides, “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . .” Unlike Rule 8.4(d), there is no limitation to crimes of moral turpitude. That is, it is an ethical violation to advise a client to commit, or to assist the client in committing, any crime. Regardless of the state law, under federal law it is illegal to grow, transport, possess, sell, or buy marijuana. 21 U.S.C. §§ 801—904. Under the Supremacy Clause of the U.S. Constitution, this law trumps state law to the contrary. Thus, it is a federal crime to engage in the conduct described regardless of state law. As such, it is an ethical violation for the lawyer to advise its client to do so or to assist the client in doing so. Further, it is also a violation of federal law to assist in growing, transporting, or selling marijuana. For example, a landlord that knowingly rents to a marijuana growing operation or a marijuana dispensary is also violating federal law. Thus, a lawyer that assists that landlord in doing so (for example, by negotiating the lease) is committing an ethical violation. Of course, this ethical rule regards ongoing and future conduct. A lawyer can freely give clients advice regarding the law as to past conduct, just as criminal lawyers do when defending a client accused of a crime. A grayer area may arise, however, if the past conduct looks exactly like ongoing or future conduct. That is, if the lawyer is simply engaging in a ruse by claiming to advise a client regarding past conduct, but the effect of the advice is to assist in ongoing or future illegal conduct, then the lawyer may be committing an ethical violation. Some states that have been aggressive regarding marijuana legalization have also been aggressive in helping lawyers ethically advise clients in the space. Colorado, for example, has enacted Official Comment [14] to Rule 1.2. It provides “A lawyer may counsel a client regarding the validity, scope, and meaning of [the Colorado constitutional provision legalizing marijuana], and may assist a client in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statutes, regulations, orders, and other state or local provisions implementing them. In these circumstances, the lawyer shall also advise the client regarding related federal law and policy.” If your state does not have such a Rule or Official Comment, however, then the ethical analysis remains as stated above. Ethical rules are usually determined at the state level, but not always. Each United States District Court has its own ethical rules. Following up on the above example, the United States District Court for the District of Colorado has expressly rejected Official Comment [14]. So, even if your states had modified its Rules to allow for advising clients regarding marijuana-related activity, if you practice in federal court, that may not be the end of the story. This Article is published for general information, not to provide specific legal advice. The application of any matter discussed in this article to anyone's particular situation requires knowledge and analysis of the specific facts involved., Co-Author, Ethical considerations when advising a business regarding marijuana-related actives, Inside Counsel, Marijuana, Ethics, 2015
- Speaker, Protecting Your Business: Litigation Basics, Denver Metro Small Business Development Center, 2009
- Law review comment which examines the local laws of the OPEC member nations related to antitrust, sets forth inconsistencies related to OPEC membership and certain member nations' antitrust laws, and concludes with a discussion regarding America's need to transition away from an oil-based economy in order to improve its national security and ensure its continued economic vitality., Author, Kieran A. Lasater, Comment, A Survey of the Domestic Approaches to Antitrust Taken by the OPEC Member Nations: Do They Practice What They Preach?, 23 PENN ST. INT’L L. REV. 413 (Fall 2004)., Law Review Comment, 2004
- On January 6, 2013, the industry’s largest player Carfax began reporting “Total Loss” vehicle history designations on its VHRs for numerous vehicles which were, in fact, never “totaled” by an insurance company and which have clean titles. Instead, the vehicles were subject to various types of minor repairs, such as minor panel sprays or bumper repairs. For this, and without any additional apparent justification, Carfax unilaterally reported the vehicles as “Total Losses” on their VHRs. Naturally, auto dealers and individuals alike are up in arms because the practical result of these inaccurate and misleading VHRs is the immediate and drastic reduction in value of the affected vehicles., Author, The Vexing Problem of Erroneous Vehicle History Reports, National Association of Dealer Counsel's The Defender, also featured in Colorado Automobile Dealers Association's Open Road, Automobile Dealerships, 2013
- CLE presentation on conflicts of law and practical ramifications of conflict between Federal Controlled Substances Act and Colorado's marijuana enactments., Speaker, Colorado Marijuana--Conflicts of Law, Marijuana, Banking, 2014
Industry Groups:
- Automobile And Powersports Dealerships
- Complex Commercial Litigation
- Real Estate Litigation
- Trademark and Trade Secret Litigation
Selections
6 Years Super Lawyers
7 Years Rising Stars
- Super Lawyers: 2020 - 2025
- Rising Stars: 2010 - 2016
