Opinion #214. Providing Advice Concerning Maine’s Medical Marijuana Act – Proposed Revisions to M. R. Prof. Conduct 1.2(e)
Issued by the Professional Ethics Commission
Date Issued: May 4, 2016
Opinion 199 was issued on July 7, 2010. That opinion responded to a request from Bar Counsel to 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 Medical Marijuana Act because of the interplay of that law with the Federal prohibition against the distribution and possession of marijuana.
Opinion 199 cited a guidance, dated October 19, 2009, from the United States Deputy Attorney General which directed United States Attorneys not to focus federal resources on individuals whose actions are in “clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” That guidance, however, made it clear that the Federal law against the distribution of marijuana was still in effect, recognized that “no State can authorize violations of federal law” and that the guidance did “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 Department of Justice (DOJ) has issued two subsequent guidance memoranda, both of which essentially reaffirm the 2009 guidance.
The issue presented which led to Opinion 199 was whether and how an attorney might act in regard to a client whose intention is to engage in conduct which is permitted by state law and which is a federal crime, even though it might not currently be prosecuted under federal law. The opinion cited Maine Rule of Professional Conduct 1.2(e), which states:
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)
The opinion noted that when the proposed client conduct is known to be a violation of federal criminal law, attorneys may counsel or assist a client in making good faith efforts to determine the validity, scope, meaning or application of the law but are forbidden from counseling a client to engage in the business or to assist a client in doing so. The opinion concluded that
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.
The Commission feels it is appropriate to revisit this opinion and to offer additional guidance to individuals and entities seeking legal advice to assist them in navigating the statutory and regulatory structure posed by the Maine legislation. In doing so, the Commission notes that there are two different issues to be addressed: 1) whether Maine lawyers can advise clients on how to conform their conduct to the law; and 2) whether a Maine lawyer may provide services that go beyond the provision of legal advice to medical marijuana clients, such as negotiation of contracts and drafting of legal documents for such a client in assisting the client in establishing a medical marijuana business.
With regard to the first question, the Commission notes that since Opinion 199 was issued, several other states have had occasion to address state legalization of medical marijuana and its impact on Rule 1.2. In that regard, a consensus seems to have developed that lawyers should be permitted to advise clients on how to conform their conduct to the law and that the provision of legal advice to clients involved in the medical marijuana trade falls squarely within that exception.
The second part of the analysis is whether Maine lawyers are permitted to go beyond merely providing legal advice to determine the validity, scope, meaning or application of the law to the point of advising clients on how to conform their conduct to the law? This would include, for instance, the negotiation of contracts and the drafting of legal documents to assist a client in establishing a medical marijuana business. The issue is that an attorney who performs such work is assisting the client in conduct that violates federal criminal law, even though such conduct is permissible under state law.
Other states have reviewed this distinction and determined that lawyers may ethically assist a client in legal matters expressly permissible under state law even if it may violate applicable federal law within certain parameters. For instance, Arizona concluded that such conduct is permissible, but only when three requirements are met: (1) there are no court decisions holding that provisions of the law are preempted, void, or otherwise invalid; (2) the lawyer reasonably concludes that the client is fully complying with state law requirements; and (3) the lawyer advises the client about possible federal law violations or recommends that the client seek other legal counsel to do so. Likewise, Washington added a new comment to its Rule 1.2 in 2015 as follows: “At least until there is a change in federal enforcement policy, a lawyer may counsel a client regarding the validity, scope, and meaning of Washington Initiative 502 and may assist a client in conduct that the lawyer reasonably believes is permitted by this statute and the other statutes, regulations, orders and other state and local provisions implementing them.” In support of the comment, Washington noted that (1) the state Governor and Attorney General were on board; (2) the state executive branch was actively involved in implementation of the relevant laws; (3) since the adoption of the statute the federal authorities had not sought to impair the statute’s operation; and (4) Congress has prevented the DOJ from using appropriated funds to prevent states from implementing medical marijuana laws. In Colorado, the state had taken a similar position to Maine’s in 2013 and determined that lawyers could represent clients in proceedings related to past activities; advise government clients, argue, or lobby for certain rules, regulations, or standards; and could advise clients about consequences of marijuana use or commerce under Colorado or federal law, but could not assist clients in structuring or implementing transactions that violated federal law and could not represent a lessor or supplier in the transaction if the lawyer knew the client’s intended use of the property or supplies. In 2014, however, the state added a comment to its rule changing its position: “A lawyer may counsel a client regarding the validity, scope, and meaning of Colorado constitution article XVIII, 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.” Similar conclusions have been reached by Nevada and Oregon.
Based on a re-evaluation of Opinion 199, pursuant to Maine Bar Rule 8(d)(3) the Commission now recommends that M. R. Prof. Conduct 1.2(e) be amended consistent with that change enacted by other states to include the following additional language:
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 (1) discuss the legal consequences of any proposed course of conduct with a client; (2) , counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law; or(3) counsel or assist a client regarding conduct expressly permitted by Maine law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client’s proposed course of conduct.
In reaching this recommendation, the Commission emphasizes, as was done in Illinois, that a Maine lawyer who represents and counsels medical marijuana clients should stress the importance of the client’s conformity with the law and regulations. The Commission further cautions that because the DOJ guidance on prosecutorial discretion is subject to change, lawyers providing advice in this field should be up to date on federal enforcement policy, as well as any modifications of federal and state law and regulations.