Opinion #199. Advising clients concerning Maine’s Medical Marijuana Act

Issued by the Professional Ethics Commission

Date Issued: July 7, 2010

Question

Bar Counsel asks the Commission to render an opinion concerning the general parameters within which an attorney may, consistent with the Maine Rules of Professional Conduct, represent or advise clients under Maine’s new Medical Marijuana Act.

Maine recently enacted legislation permitting the creation of dispensaries for the purpose of providing qualified patients with marijuana for medical treatment. Questions have arisen regarding the role which Maine attorneys may ethically play because of the interplay of Maine’s new law with the Federal prohibition against the distribution of marijuana. This issue has been made more problematic by the guidance, dated October 19, 2009, of the current United States Deputy Attorney General, David W. Ogden. Ogden’s memorandum (“the memorandum”) directs the United States Attorneys:

As a general matter, pursuit of [illegal drug prosecution] priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.

The memorandum, however, makes clear that the Federal law against the distribution of marijuana is still in effect. It recognizes that “no State can authorize violations of federal law” and that

This guidance regarding resource allegation does not ‘legalize’ marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil or criminal matter.

The issue, then, is whether and how an attorney might act in regards to a client whose intention is to engage in conduct which is permitted by state law and which might not, currently, be prosecuted under federal law, but which nonetheless is a federal crime. Indeed, the memorandum notes that “the prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department” and that nothing therein “precludes investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the production or distribution of marijuana for purpose not authorized by state law.”

Opinion

The ethical framework governing lawyer conduct, the Maine Rules of Professional Conduct, states clearly that:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of the proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law. M. R. Prof. Conduct 1.2 (e)

Here, the proposed client conduct is known to be a violation of federal criminal law. In those circumstances, the role of the attorney is limited. While attorneys may counsel or assist a client in making good faith efforts to determine the validity, scope, meaning or application of the law, the Rule forbids attorneys from counseling a client to engage in the business or to assist a client in doing so. The limitation is highlighted by the 2009 Comment [9]: to M. R. Prof. Conduct 1.2:

There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

Maine and its sister states may well be in the vanguard regarding the medicinal use and effectiveness of marijuana. However, the Rule which governs attorney conduct does not make a distinction between crimes which are enforced and those which are not. So long as both the federal law and the language of the Rule each remain the same, an attorney needs to perform the analysis required by the Rule and determine whether the particular legal service being requested rises to the level of assistance in violating federal law. It is worth noting that there is no guarantee that, with a change in policy, administration, or resources, the federal law might ultimately be enforced to the chagrin of lawyers whose conduct enabled the dispensaries. Even under the present policy, it is a situation where potential clients may ultimately, if not initially, use the medical dispensary and state law as a pretext for other more lucrative ventures.

Where the line is drawn between permitted and forbidden activities needs to be evaluated on a case by case basis. Bar Counsel has asked for a general opinion regarding the kind of analysis which must be undertaken. We cannot determine which specific actions would run afoul of the ethical rules. We can, however, state that participation in this endeavor by an attorney involves a significant degree of risk which needs to be carefully evaluated.