Cannabis: when you can’t “just say no”

My post on the ethical issues associated with marijuana is HERE.  A quick summary: the key ethical concern is whether lawyers violate Rule 1.2(d) by providing clients with advice and assistance on a matter that is legal under state law but illegal under federal law.

Many lawyers are too quick to write off the issue as not impacting their practicing or clients. They say:  “Mike, ‘no’, I don’t need to worry about the ethics of marijuana. It could never impact my practice.”  Oh really?

For example, labor lawyers – imagine this:

  • Employee, a quadriplegic, has a prescription for medical marijuana;
  • he uses it at home, off the clock, to treat debilitating muscle spasms;
  • state law prohibits employers from firing employees for engaging in lawful activities off the job;
  • during a routine drug test, Employee tested positive for cannabis;
  • Employer immediately terminated Employee

Employee goes to Lawyer for advice.  Employer goes to Attorney for advice.  Put yourself in the shoes of either, what say ye?

Here’s what the Colorado Supreme Court said. If you’d rather not the read the entire opinion, the ABA Journal summarized it HERE.  In short, the Colorado court concluded that because marijuana is illegal under federal law, its use isn’t lawful and is a valid basis for termination.

The ABA article raises several other scenarios in which lawyers find themselves struggling to give competent advice on issues related to marijuana, and confused as to how to do so without violating the ethics rules.  Here are a few more:

  • does an attorney assist a client to violate federal law by representing the client in connection with an application for a state-issued license/permit to operate a medical marijuana dispensary?
  • if the client receives a permit, does a real estate attorney assist the client to violate federal law by representing the client in connection with purchase of land upon which to build the dispensary? what about the attorney who represents the dispensary before the local zoning board?
  • you represent a bank. are you familiar with the Department of Treasury’s Financial Crime Reporting Network’s memorandum that provides guidance on the Bank Secrecy Act and expectations regarding marijuana related businesses?
  • A criminal defense client’s conditions of release prohibit her from violating the law.  She has a prescription for medical marijuana.  She asks for advice as to whether she will violate her conditions by using the medical marijuana.
  • Family law practitioners: client asks you to file a motion to modify a parent child contact order.  Client’s ex has a prescription for medical marijuana, but Client doesn’t want “the kids around marijuana because it’s illegal!” Have you thought about what advice you’d give in this situation?

So, yes Virginia, this is an issue that might impact you.

I have collected a power point presentation that refers to ethics opinions issued in several other states.  If you would me to send it to you, please let me know. Also, we will discuss these issues on January 15 at the YLD Thaw.

Tomorrow, Thursday, I will try to post an early, holiday-themed version of Five For Friday.