Lately, I traveled to Chicago to speak at a conference hosted by the American Bar Association (“ABA”) titled From Regs to Riches: Navigating the Quickly Emerging Fields of Cannabis and Hemp Law. The Conference covered a broad variety of cannabis subjects which includes the tension among state and federal law on marijuana, navigating the licensing and start off-up processes in a state that has just gone legal, advising consumers in the hemp and hemp-derived CBD space, intellectual house problems, insurance coverage coverage for marijuana enterprises, the burgeoning worldwide industry for cannabis trade, and ethical problems a marijuana lawyer have to contemplate. As you in all probability guessed from that title, that final point is going to be the concentrate of this post.
I spoke on a panel at the Conference, along with moderator Michael W. Drumke of Swanson, Martin & Bell and fellow panelists Alec Rothrock of Burns, Figa & Will and Steven Money of Day Pitney LLP.
Just before I get began, I want to deliver a disclaimer for the non-lawyer readers of the weblog. In this context, unless otherwise noted, “Ethics” refers to the guidelines of expert conduct that govern lawyers. Lawyers are afforded a terrific deal of trust from consumers, other lawyers, courts, and society as a entire. As such, we have our personal set of Ethics to observe in order to sustain our licenses to practice law. Each state governs its personal attorneys and each and every has its personal guidelines. For instance, these guidelines govern a lawyer’s conduct in the state of Washington. Even though no two states Ethics are precisely alike, most states adhere to the ABA’s Model Guidelines of Expert Conduct in drafting their personal guidelines.
Model Rule 1.two(d) states the following:
A lawyer shall not counsel a client to engage, or help a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer could go over the legal consequences of any proposed course of conduct with a client and could counsel or help a client to make a great faith work to figure out the validity, scope, which means or application of the law.
The production, processing, possession, transportation, and sale of marijuana is a violation of federal law beneath the Controlled Substances Act (“CSA”). Several states have legalized either recreational or health-related marijuana which conflicts with federal law. If a lawyer is operating with a client who is operating a state-legal marijuana enterprise, she is assisting the client in conduct that she knows is criminal beneath federal law. Strict compliance with Rule 1.two would imply that no lawyer could function with a marijuana enterprise in states exactly where marijuana is legal. That would be a ridiculous outcome as it would deprive an whole market, one particular that it heavily regulated and complicated, of legal representation.
In light of this, numerous states are adding comments to their version of Rule 1.two to let lawyers to function in the marijuana market. If you are a lawyer venturing into the marijuana market, make certain you fully grasp how your state bar bargains with RPC 1.two (d). Do not assume that you are “good to go” just since voters legalized marijuana.
In Washington, our State Supreme Court, which regulates lawyers, added the following comment to Washington’s Rule 1.two:
[A] lawyer could counsel a client concerning Washington’s marijuana laws and could help a client in conduct that the lawyer reasonably believes is permitted by these laws. If Washington law conflicts with federal or tribal law, the lawyer shall also advise the client concerning the connected federal or tribal law and policy.
The Washington State Bar Association also issued a non-binding opinion on whether or not lawyers can buy marijuana, customer marijuana and personal marijuana enterprises. Spoiler alert, the answer to all 3 concerns is “yes,” with strings attached.
Does that comment adjust Rule 1.two? Nope. It just gives guidance. Do the comment and guidance from WSDA deliver even an ounce of protection for a lawyer who is violating federal law by “aiding and abetting” marijuana consumers? No way! Even though at this point federal enforcement against state-legal marijuana appears really unlikely, lawyers, like their consumers, are taking a threat by operating in this space. At the finish of the day, a marijuana lawyer desires to accept this truth in order to function in this field.
For these that do take the plunge, right here are a couple of guidelines that had been discussed on the Ethics panel in Chicago:
- Make certain that your client understands that marijuana is illegal beneath federal law and that practically nothing in state law modifications that. This disclaimer ought to be in just about every engagement letter that is in any way connected to marijuana. Require an instance? Right here is the disclaimer that we use for this weblog (also conveniently positioned to the suitable of this post): “Please be mindful that possessing, working with, distributing and promoting marijuana are all federal crimes and that this weblog is not intended to give you any legal guidance, significantly much less lead you to think that marijuana is legal beneath federal law.” Hold in thoughts that this disclaimer is for a weblog, not an engagement letter, but it states in plain English that marijuana remains illegal beneath federal law. On the other hand, do not assume that one particular disclaimer is adequate. Remind your client of the federal dangers early and usually.
- Limit the scope of your engagement to state law. For instance, if a client requests that you enable with some legal problems connected to her Washington-licensed marijuana develop you, ought to state that your firm will “provide guidance on the lawful cultivation of marijuana in Washington State.” Without having that final bit “lawful cultivation” is not actually feasible due to the CSA. Do not assume that everybody who ever reads that engagement letter will know what you meant. Spell it out initially to prevent ambiguity.
- If you reside in a state exactly where it is legal and Ethical for a lawyer to consume marijuana, do so responsibly. Lawyers are statistically significantly far more probably to struggle with substance abuse troubles, in comparison to non-lawyers, as indicated in a recent report by the ABA Commission on Lawyer Help Applications published in the Journal of Addiction Medicine. Marijuana has no spot on Schedule I of the CSA, alongside heroin and ecstasy. On the other hand, it can be abused and can negatively effect an attorney’s practice. If you do choose to consume marijuana, either for recreational or health-related purposes, make certain that you are not intoxicated although on the job as that could have devastating final results for each you and your client. If you consume right after hours, spend consideration to how your physique reacts throughout operating hours. If you come across that you really feel groggy the morning right after consuming, you could want to only partake on the weekends or, at the really least, prevent consuming the evening just before your opening argument or that higher-stakes negotiation. If you are struggling with substance abuse or mental wellness problems, you can come across sources right here.
Marijuana legalization has come with distinctive Ethical challenges and I enjoyed discussing some of these problems at the ABA’s Conference. As a final note, the Conference was sponsored by the Tort Trial and Insurance coverage Practice Section of the ABA and our lawyer-readers who are interested in joining this section, can come across far more information here.