Ethical considerations when advising a business regarding marijuana-related activities

October 15, 2015

By: John M. Tanner

Inside Counsel

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“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.

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