Can an Ethical Lawyer Work for a Marijuana Merchant?


Jacob Sullum

Alaska's Measure 2, which legalizes marijuana for recreational use, takes effect on February 24, eliminating penalties for possessing up to an ounce in public, growing up to six plants at home, and sharing up to an ounce at a time. Commercial production and distribution will take a bit longer: The initiative requires the state's Alcoholic Beverage Control Board to adopt regulations for marijuana businesses by November and start accepting applications from growers and retailers by early 2016. But where will those cannabis entrepreneurs get the legal guidance they need to navigate the new regulatory system? The answer is not as clear as you might think, since marijuana remains illegal under federal law and Alaska's Rules of Professional Conduct say "a lawyer shall not counsel or assist a client to engage in conduct that the lawyer knows is criminal."

Despite that rule, the Alaska Bar Association's Ethics Committee recently advised lawyers that it's OK to tell a client how to comply with state and local laws governing the commercial production and distribution of marijuana, as long as they make it clear that those activities remain felonies under federal law. Furthermore, the committee says in an unofficial opinion, a lawyer "probably could ethically provide to a marijuana business that is legal under Alaska law the same types of business law services a lawyer could provide to any other legal business," such as drafting contracts and other documents. But the memo adds that "the question of the lawyer actually participating in the business—as by investing or being on a board of directors—is more complex." Until the Alaska Supreme Court or the bar association's board of governors resolves the issue, the committee says, "a lawyer should exercise caution and not become directly involved in operating a business that remains illegal under federal law." 

The Colorado Bar Association initially took a narrower view of the extent to which lawyers can ethically assist cannabusinesses. Colorado's Rules of Professional Conduct say "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal." According to a 2012 opinion from the Colorado Bar Association, that rule "prohibits lawyers from assisting clients in structuring or implementing transactions which by themselves violate federal law." That meant a lawyer could not, for example, draft or negotiate contracts or leases for cannabusinesses, although he could advise clients about the legal consequences of past or future marijuana-related activities. Last March the Colorado Supreme Court approved a rule change that eliminated this restriction. Under the new rule, a lawyer "may assist a client in conduct that the lawyer reasonably believes is permitted" by state and local laws governing the cannabis industry. The lawyer also "shall also advise the client regarding related federal law and policy."

Last month the Washington Supreme Court made a similar change in light of I-502, that state's legalization measure. The court adopted a rule that says "a lawyer may counsel a client regarding the validity, scope, and meaning of Washington Initiative 502 and may assist a client in conduct that the lawyer reasonably believes is permitted by this initiative and the statutes, regulations, orders and other state and local provisions implementing them."

[Thanks to Marc Sandhaus for the Alaska Disptach News link.]

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  1. “a lawyer shall not counsel or assist a client to engage in conduct that the lawyer knows is criminal.”

    Illegal does not necessarily mean criminal. At least that’s the excuse that I’d use.

    1. Aaaaaaand disbarred.

      1. Aaaaaaand reinstated. The Controlled Substances Act is unconstitutional in states that legalize things the CSA prohibits.

        The feds had to ratify the 18th amendment to prohibit alcohol federally, and that amendment got repealed.

        The US Constitution does not grant authority to prohibit intoxicants to the federal government. Instead, it reserves it to the states alone.

  2. “You don’t want a criminal lawyer, you want a criminal lawyer.”

  3. Ethical lawyer? Is that like a female libertarian?

    1. Not really because the existence of a female Libertarian is theoretically possible.

  4. Laws criminalizing marijuana are highly unethical so I would say that the answer to the question is yes. However, I suspect that Bar Associations use the word ‘ethical’ in a different way than I do.

    *Cant a lawyer counseling an MJ client just follow all advice with “But don’t do that because it is illegal”?

    1. I’ve heard that during prohibition there was a company that sold home brew kits complete with instructions. Except they had a different name for the kit, and the instructions said ” Warning, do not (listed all steps in detail) because it will make an illegal substance.

      1. There was a huge uptick in California grape growing. The grapes were sold in compressed and partially dehydrated form called “wine bricks”.

        Accounts of passive-aggressive instructions like “After dissolving the brick in a gallon of water, do not place the liquid in a jug away in the cupboard for twenty days, because then it would turn into wine” are popular but are unattested, repeat implausibly casual phrasing, and are probably not true, as the manufacturers believed, or claimed to believe, that the bricks could legally be fermented under “Section 29 of the National Prohibition Act”.

        If so, I believe they were mistaken; the only relevant clause in that section (the rest specify penalties) reads “The penalties provided in this Act against the manufacture of liquor without a permit shall not apply to a person for manufacturing nonintoxicating cider and fruit juices exclusively for use in his home, but such cider and fruit juices shall not be sold or delivered except to persons having permits to manufacture vinegar.” My emphasis of course, but everywhere else “nonintoxicating” is defined as less than 0.5% alcohol, which includes no one’s definition of wine.

        1. The Volstead Act had the same constitutional basis then that the Controlled Substances Act does now.

          Both are constitutional only under the 18th amendment, which was repealed. Oops.

  5. Another contradiction that is seldom mentioned in regard to marijuana de-criminalization in several states, even if that is only for medical marijuana, is that any ‘legal’ user (legal under state law), is precluded from buying a firearm that would require a federal background check. Buyers are required to fill out a form that specifically asks if they are a marijuana user; if they answer yes, then the dealer cannot facilitate the sale, even though marijuana use may be legal in that state. In fact, in states such as Arizona, where medical marijuana may be used legally, but the user must apply to the state for a ‘Marijuana Card’, there is a fear that the Feds could come in and compare the states’ list of gun buyers with the Medical marijuana list and bust those that ‘lied’ on the form to obtain a firearm (which is a felony). Yes, technically, if you legally take one puff on a joint in Colorado, you can no longer legally buy a gun.

    1. Another example of why laws criminalizing MJ are unethical. Violating second amendment rights without due process makes those laws not only unethical but unconstitutional, thus not laws.

      In the end the only thing the drug warriors have is the gun. They have no ethical or legal grounds for their position.

    2. Actually that’s not true. The Controlled Substances Act is unconstitutional when applied to a state that legalizes an intoxicant the CSA prohibits.

      The feds had just as much supremacy in 1914 as they do today in 2014, and they couldn’t prohibit alcohol without ratifying the 18th amendment…which was repealed.

      1. Eric Holder sent a letter to ‘FFLs’ (Federal Firearms License holders) a couple of years ago stating specifically that it would be illegal under Federal law to transfer a firearm to anyone answering ‘yes’ to the question on the background check in regard to using marijuana regardless of State law. I might be able to see your point, and you may be right, but that may not keep you out of prison under this regime that wants to punish gun ownership, Constitution or no. I would not want to roll the dice with a sympathetic judge.

  6. Of course, it’s legally acceptable to get shitfaced drunk every day and have an arsenal in your house.

    1. As it should be. What’s your point?

      1. The new libertarian thing is to trade marijuana legalization for alcohol prohibition. Not sure why that’s supposed to be libertarian, but there you go.

  7. Dude that makes no sense at all man.

  8. It seems rather obvious to me that just because various entities purporting to be government claiming that something is criminal doesn’t mean that ones knows it to be criminal.

    I, for one, don’t know that anything government considers malum prohibitum is illegal or criminal.

  9. It’s time to rewrite federal law.

  10. But a lawyer does NOT necessarily know that complying with state law that disagrees with federal law might be a criminal act.

    Federal power is neither absolute or infinite. The US Constitution makes it quite clear that some authority is held only by the states, not the feds.

    Prohibition of intoxicants is one of those things where states have the authority.

    In 1914, the feds had exactly the amount of supremacy over the states that they do today in 2014 and they could not prohibit alcohol federally without amending the constitution.

    When the 18th amendment was repealed by the 21st amendment, it removed the federal authority to enact prohibition. The 21st did allow the feds to assist the states in preventing smuggling of alcohol into states that prohibit it, but there’s two problems there.

    First, it only applies to ALCOHOL. There is no federal authority to prohibit any other intoxicants.

    Second, if a state legalizes alcohol, the feds lose any authority to prohibit alcohol in that state entirely.

    Assuming that the 21st amendment allows the feds to prohibit intoxicants in general rather than just alcohol (even though that’s not what the amendment says), it still doesn’t allow the feds to prohibit cannabis in a state that legalizes it.

    Federal statutes may have supremacy over state laws, but federal statutes CANNOT have supremacy over the United States Constitution!

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