Blogs

More than twenty states and the District of Columbia have legalized the growing, processing, transportation, sale, and use of marijuana for medical purposes.  Two states, Colorado and Washington, have also legalized recreational and personal use.  The Department of Justice is making noises about backing off on prosecuting certain marijuana crimes.[1]  Most observers expect these trends to continue and that the era of marijuana’s underground economy is coming to an end. 

As a result, there is a growing demand for legal services from those associated with this would-be “legal” industry: growers and retail sellers, lenders, tenants and landlords, those that would invent and manufacture technology associated with and many others associate with or servicing those that want to take advantage of this gold rush.  Great news for a legal industry in the doldrums.  Yipee!  Hop on the gravy train!

Not so fast you would-be rain makers.  The grass is not always greener, and there are hazards for the unwary lurking among the weed(s).  In the fog of all this pot-mania, it is easy to forget something significant about Marijuana (I’m out of metaphors) -  It’s still illegal. 

Marijuana is a Schedule 1 drug, and possession, sale, and distribution are federal crimes.[2]  Because possession, sale and distribution are still illegal, conspiring with or aiding and abetting someone who possesses, sells or distributes marijuana is a crime under federal law.[3]  So, if your legal services might be argued (by some zealous prosecutor) to constitute conspiring aiding or abetting a client in possessing, distributing or selling marijuana, you may be committing a federal conspiracy crime.  And, depending on what it entails, your legal service could also be argued (by some zealous prosecutor) to constitute conspiring, aiding or abetting a client in possessing, distributing or selling marijuana, or even aiding or abetting a client in aiding or abetting someone else (which is also a crime). 

As if the potential of being charged with a crime weren’t enough, ethical issues also loom.  Model Rule 1.2(d) provides that a lawyer shall not “assist a client in conduct the lawyer knows is criminal or fraudulent.”  Cultivating, distributing, and using marijuana is still a federal crime, and Model Rule 1.2(d) prohibits a lawyer from assisting a client committing a crime.  So the lawyer must examine whether providing the requested representation and advice might constitute “assisting” in the commission of a violation of federal law, even in those state jurisdictions that have legalized the client’s activity.  Likewise, if the lawyer’s legal assistance facilitates the possession or sale of marijuana in violation of federal criminal law, the lawyer may also be at risk of violating Rule 8.4(b), which states that it is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s fitness as a lawyer, as well as Model Rule 8.4(d), which prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice.

Six state authorities have issued ethics opinions or amended the comments to their rules of professional conduct in an attempt to sort out the problem, with inconsistent results.[4]  Though several seem to permit some participation by lawyers, they do not insulate lawyers in these jurisdictions from discipline. They still may face disciplinary action if the client conduct goes beyond what is permitted under the state regulatory framework.  Also, there are additional issues raised by advising local businesses regarding their operations in other states that have different laws regarding marijuana.  Under most analysis, there is a critical distinction between presenting a client with an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud may be committed with impunity.

And what about personal use in the brave new world?  There are no clear answers yet, but Model Rule 8.4 provides that it is professional misconduct for a lawyer to “commit an illegal act that reflects adversely on the lawyer’s honesty or trustworthiness”.  Does marijuana use (where illegal) fit that bill?  That’s open to interpretation.  One thing that is clear is that,  as with  alcohol, a lawyer risks discipline if  his or her  marijuana  use  leads to breaching the duties of competence (Model Rule 1.1) or diligence  (Model Rule 1.3), or results  in a criminal violation, such  as driving under the influence of marijuana.

So, what’s an ethical lawyer to do?  Lawyers still risk discipline if they assist a  client that engages in activity that goes beyond the state's regulatory framework (save, obviously, if they can prove that they had no reason to know or suspect that the client was engaged in wrongful conduct).  Until Congress decriminalizes marijuana use or distribution under federal law, lawyers considering representing clients that are or want to be involved in the growing marijuana industry need to look carefully at both local laws and exactly what they are being asked to do.

Tom Feher is a partner in the Cleveland Ohio office of Thomson Hine, in the Business Litigation and Product Liability practice groups, and serves as the firm's Loss Prevention Partner.  He is a member of DRI's Lawyers' Professionalism and Ethics Committee and Chair of the Law Firm Counsel Subcommittee.  The very square views expressed herein are TOTALLY AWESOME DUDE, but are still his own.