Five for Friday #114

Dude!  Welcome to the 4/20 Five for Friday!

So, whenever #113 falls on Friday the 13th, odds are pretty good that #114 will fall on Friday the 20th.  That it happens to have happened in April is an added bonus.

4/20. 114.  1.14.  14.

A theme connects them.

(If you don’t know what 420 refers to, for the purposes of this post, it’s marijuna. For the backstory, check out either of these pieces from the Huffington Post and Time. )

Now, the theme as it connects to 114, 1.14, and 14.

Well, 114 doesn’t remind of me anything. However, if you add a decimal, you get 1.14.  As in, Rule 1.14.

Rule 1.14  sets out a lawyer’s duties with respect to the client whose “capacity to make adequately considered decisions in connection with a representation is diminished.” Per the rule, it matters not what causes the diminished capacity.

What’s this got to do with anything?  Well, depending on your clientele, some of you might bump into the rule later today.  If you do, remember: you duty is to maintain, as far as reasonably possible, a normal client-lawyer relationship with the client.

Of course, there’s much more to cannabis and marijuana than dealing with the client who may have used to the point of impairment prior to showing up for court or a meeting with a lawyer.  That’s where 14 comes in.

As in, Comment [14] to Rule 1.2.

Rule 1.2 is the rule that prohibits lawyers from counseling or assisting a client to engage in conduct that is criminal.  The rule draws no distinction between conduct that is criminal under state law as opposed to federal law. Nor does it draw any distinction between federal crimes that are enforced more vigorously than others.

Cannabis is a Schedule I drug under the Controlled Substances Act.  As such, federal law prohibits its manufacture, possession, use, and sale. Vermont law is (and will be) much different.

So, what’s a lawyer to do? That is, if a Vermont client wants legal advice or assistance on a marijuana-related issue that is legal under Vermont law, would a lawyer who provides that advice & assistance violate Rule 1.2 by assisting the client to violate federal law?

Comment 14 states that a lawyer may:

  • advise a client on “the validity, scope, and meaning” of Vermont’s marijuana laws; and,
  • “may assist a client in conduct that the lawyer reasonably believes is permitted” by Vermont law, so long as the lawyer also
  • “advise[s] the client regarding the potential consequences of the client’s conduct under federal law.”  

Last January, the final prong took on added importance when Attorney General Sessions issued this memorandum.

Remember –  it’s not just Comment 14 to Rule 1.2: ALL of the other rules apply as well, including Rule 1.1 and the duty of competence.  For instance, a Vermont lawyer has a duty to provide competent advice to:

  • a business client who asks whether the law allows her to open an edibles bakery or a CBD extraction facility;
  • an employer who asks whether the law requires the employer to accommodate an employee who needs to use medical marijuana during work breaks;
  • an injured worker who wants to know whether the comp carrier has to pay for medical marijuana prescribed to treat the injury; and,
  • a landlord who asks whether a standard lease term prohibiting a tenant from doing anything illegal in the unit allows the landlord to evict a tenant who has 3 plants.

Finally,and less CLE-ish, I leave you with this.  As a lawyer, it’s a bad idea to try to frame an enemy by planting marijuana and other drugs in her car and then calling 9-1-1 to report her for erratic driving.

Onto the quiz!


  • None.  Open book, open search engine, text/phone/email-a-friend.
  • Even question 5!
  • Unless stated otherwise, the Vermont Rules of Professional Conduct apply
  • Team entries welcome, creative team names even more welcome.
  • E-mail answers to
  • I’ll post the answers & Honor Roll on Monday
  • Please don’t use the “comment” feature to post your answers
  • Please consider sharing the quiz with friends & colleagues
  • Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

Question 1

Attorney called with an inquiry.  I listened, then said:

  • “the first thing the rule says is that you’re supposed to try to maintain as a normal a client-relationship as possible.”

Given my response, it’s most like that Attorney called to discuss a client:

  • A.  who had filed a disciplinary complaint against Attorney.
  • B.  who informed Attorney that client will lie at trial.
  • C.  who informed Attorney that client is seeking a 2nd opinion.
  • D.  whose capacity to make adequately considered decisions in connection with the representation is diminished.

Question 2

Which phrase doesn’t belong with the others?

  • A.  Former client.
  • B.  Same or Substantially Related.
  • C.  Materially Adverse.
  • D.  Information Related to the Representation.

Question 3

Under the Rules of Professional Conduct, which is treated differently than the others?

  • A.  whether to settle.
  • B.  whether to depose a particular witness.
  • C.  whether to file a motion to dismiss.
  • D.  Trick question. The rules treat each the same.

Question 4

Lawyer called me with an inquiry. I listened, then said:

  • “Generally, it’s okay to advise a client to do it, as long as (1) it doesn’t rise to the level of spoliation, or otherwise impermissibly alter, conceal, or destroy evidence; and (2) you and client don’t deny it exists if asked to produce it in discovery.”

Given my response, it’s most likely that Lawyer called to inquire about advising a client:

  • A.  to “take down” or “scrub” social media posts.
  • B.  to surreptitiously record a conversation with a represented adversary.
  • C.  to move money from a bank account to an online service like PayPal or Venmo.
  • D.  to use a shared iCloud account to review a spouse’s text messages in a divorce.

Question 5

William Creighton Howard was both a doctor and lawyer.  From 1922-1939, he was legislative counsel to the American Medical Association.

In 1937, Howard and the AMA were staunchly opposed to proposed tax legislation. Among other things, the legislation required physicians and pharmacists to collect a tax on a product that they prescribed and sold.

Despite the efforts of Howard and the AMA, the legislation passed and President Roosevelt signed the ensuing Act into law.

After the bill passed, Howard complained that it had been drafted in secret and put to vote before opponents had time to read it & prepare their opposition.  (I guess some things never change.)  More importantly, he complained that Act used a deceiving title to disguise its true purpose. He also claimed that proponents of the Act had garnered support by misleading people into thinking that a particular product was prone to overuse and, when overused, caused users to become violent.

In 1965, counter-culture icon Timothy Leary was arrested and charged with violating the Tax Act.  In 1969, a unanimous U.S. Supreme Court declared the Act unconstitutional and overturned Leary’s conviction.

What product did the Act tax?

Bonus: in Leary’s case, what part of the Constitution did the Supreme Court conclude that the Tax Act violated?









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