[I am excited to share my first guest blog! I asked my friend and colleague, Neil Posner, to write a blog post about the professional responsibility issues for attorneys like me: pot lawyers. Please enjoy responsibly:]
As A Lawyer, Can You Counsel Clients on Marijuana Law?
By Neil Posner
Several jurisdictions in the United States have legalized—in one form or another—the use of cannabis. It already is legal to use cannabis for recreational purposes in Colorado, Washington and Oregon. Alaska has legalized it but no cultivation centers have yet been approved. A ballot initiative in the District of Columbia made recreational use legal, but Congress has blocked implementation of that.
The medical use of cannabis is legal in Alaska, Arizona, California, Colorado, Connecticut, the District of Columbia, Delaware, Florida (on a very restrictive basis), Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Washington. Several other states are within striking range of legalizing cannabis for recreational and/or medical purposes. Thus, we are fast approaching the point where recreational and/or medical use of cannabis is or will be legal in at least half of all United States jurisdictions.
Federal law, however, has not caught up. The Controlled Substances Act (“CSA”), 21 U.S.C. § 841(a)(1), makes it a federal crime to manufacture, distribute or possess with intent to distribute marijuana. And even though the Department of Justice has issued memos on their enforcement policies (see, e.g., the “Ogden Memorandum” of October 19, 2009, (https://www.justice.gov/opa/blog/memorandum-selected-united-state-attorneys-investigations-and-prosecutions-states) and the “Cole Memorandum” of August 29, 2013 (https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf)), the question for lawyers is: If cannabis is legal in my jurisdiction but illegal under federal law and in other states, can I advise clients on the subject without losing my license? Well, your guest blogger is here to help!
Let’s begin by looking at ABA Model Rule 1.2(d), which provides:
A lawyer shall not counsel a client to engage, or assist a client, 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 assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
The ABA’s most recent annotation to this rule—which I quote in its entirety because it has citations to lots of interesting and useful resources—states:
This issue has come into relief in jurisdictions that expressly permit the limit use of marijuana—a crime under federal law. See, e.g., Ariz. Ethics Op. 11-01 (2011) (permissible under Rule 1.2(d) for lawyer to assist clients wishing to start businesses or engage in other actions permitted under Arizona Medical Marijuana Act); Colo. Ethics Op. 125 (2013) (lawyer may advise client about state or federal law governing marijuana use or commerce but may not assist client in marijuana transactions such as drafting or negotiating contracts that would violate federal law); Conn. Ethics Op. 2013-02 (2013) (lawyer may advise and represent client concerning state requirements for licensing and regulation of businesses that grow or dispense marijuana for medical purposes but must inform client that such businesses violate federal criminal statutes, and lawyer may not assist client in criminal conduct); Me. Ethics Op. 199 (2010) (Rule 1.2 makes no “distinction between crimes which are enforced and those which are not,” so lawyer must “determine whether the particular legal service being requested rises to the level of assistance in violating deferral law”); Colo. Rule of Prof’l Conduct 1.2, cmt.  (“A lawyer may counsel a client regarding the validity, scope, and meaning of Colorado constitution article XVIII, secs. 14 & 16, and may assist a client in conduct that the lawyer reasonably believes is permitted by these constitution 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”). See generally A. Claire Frezza, Counseling Clients on Medical Marijuana: Ethics Caught in Smoke, 25 Geo. J. Legal Ethics 537 (Summer 2012); Sam Kamin & Eli Wald, Marijuana Lawyers: Outlaws or Crusaders?, 91 Or. L. Rev. 869 (2013); Alec Rothrock, Is Assisting Medical Marijuana Dispensaries Hazardous to a Lawyer’s Professional Health?, 89 Denv. U.L. Rev. 1047 (2012).
Ellen J. Bennett, Elizabeth J. Cohen, Helen W. Gunnarsson, Annotated Model Rules of Professional Conduct 46 (8th ed. 2015). See also new Comment  to the Nevada Rule of Professional Conduct 1.2 (which closely mirrors Comment  to Colorado’s Rule 1.2); Minn. Stat. § 152.32, Subdivision 2(i) (“An attorney may not be subject to disciplinary action by the Minnesota Supreme Court or professional responsibility board for providing legal assistance to prospective or registered manufacturers or others related to activity that is no longer subject to criminal penalties under state law pursuant to sections 152.22 to 152.37.”); and Ill. R. Prof’l Conduct 1.2(d)(3) (“A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may . . . counsel or assist a client in conduct expressly permitted by Illinois law that may violate or conflict with federal or other law, as long as the lawyer advises the client about that federal or other law and its potential consequences.”).
It’s especially important to pay attention to the distinction between giving “advice,” and giving “assistance.” To do that, there really is no substitute for reading the rules and ethics opinions in the jurisdictions in which we practice.
So, as long as it remains a federal crime to manufacture, distribute or possess with intent to distribute marijuana, and to cross state lines with it, here are the biggest takeaways:
- Closely read the Rules of Professional Conduct and the Ethics Opinions in each state in which you practice;
- Keep in mind the distinction between “advise” and “assist”;
- Don’t assume that the Rule you read last month is the Rule that’s in force today; and
- If in doubt, call a lawyer who deals with these issues on a regular basis!
Neil Posner is a policyholder’s insurance coverage attorney who also practices extensively in the area of lawyer’s professional liability, which includes counseling lawyers and law firms on professional responsibility and ethics matters. He has served as an expert witness in this area, and speaks and writes extensively on the subject. Neil can be reached at email@example.com and (312) 521-2623.