Let's resolve the medical-marijuana issue

Let’s resolve the ethical conundrum in our ethical rules about medical marijuana, and any other state/federal conflicts that arise. I’ve filed a rule-change petition (R-16-0027) to do just that.

To refresh your memory, here’s the problem in a nutshell:

1.    We have a state law authorizing medical marijuana.
2.    Federal law still makes anything to do with marijuana criminal.
3.    Our Ethical Rule (ER) 1.2(d), which is identical to the American Bar Association’s Model Rule 1.2(d), specifically bars lawyers from “counsel[ing] a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.”
4.    Strictly applied, this means that by advising and helping clients conduct business under Arizona’s medical-marijuana law, lawyers are engaging in criminal conduct under federal law (regardless whether they are prosecuted) and thus violating ER 1.2(d).

After Arizona adopted medical marijuana in the 2010 general election, lawyers understandably wanted to know how they could represent medical-marijuana businesses, be involved in the industry as owners or investors, or even take medical marijuana. (Actually, lawyers started asking before the election, just in case the measure passed.)

Many were more than a little grumpy when they heard about the ER 1.2(d) problem.

The State Bar’s Committee on the Rules of Professional Conduct produced one of the first ethics opinions in the United States that tried to reconcile the (unfortunately) clear text of ER 1.2(d) with conduct that Arizona legally allowed. Its conclusion, in short: despite ER 1.2(d), lawyers need to be able to be involved with this new state law and they can be, as long as they advise their clients about the federal issues. Read the full opinion here.

Why can’t we just rely on this opinion? After all, the Rules of Professional Conduct are, according to the rules preamble, “rules of reason” that “should be interpreted with reference to the purposes of legal representation and of the law itself.”

In Arizona, Ethics Op. 11-01 has provided much needed guidance. But in Arizona, as in many other jurisdictions, ethics opinions issued by a State Bar committee – the Committee on the Rules of Professional Conduct, in this state -- are advisory only and not binding on the discipline system. This is true even though the State Bar of Arizona is a mandatory bar to which all licensed members in this jurisdiction must belong, and even though the ethics advisory function coexists in the same organization as the discipline prosecution function.

And frankly, it doesn't make any sense to have a rule that says one thing and an ethics opinion that says another. I'm a big fan of transparency and logic. Lawyers should be able to read the ethical rules and accept what they say at face value. Instead, what we have now is a little pretend asterisk next to ER 1.2(d) that says "but this may or may not apply to you and medical marijuana."

Since the wave of adoption of state medical-marijuana laws, many affected jurisdictions with Model Rule 1.2(d) language have recognized the conflict between the rule and their new permissible state laws and have formally changed their professional-conduct codes, thereby removing any uncertainty. Arizona should do likewise.

Our ER 1.2(d) already provides the following:

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 any 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.

Let's add a third category of conduct that lawyers may engage in: "counsel or assist a client regarding conduct expressly permitted by Arizona law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client’s proposed course of conduct."

Connecticut and Illinois already have adopted this language to recognize that there may be times when -- as Illinois explained in its rule comment -- “the conflict between state and federal law makes it particularly important to allow a lawyer to provide legal advice and assistance to a client seeking to engage in conduct permitted by [state] law.” 

The language adopted by Connecticut and Illinois also importantly incorporates a concept promoted in Ethics Op. 11-01: that lawyers may provide necessary legal help to a client taking permissible acts under Arizona’s medical-marijuana law if they advise the client of the “potential federal law implications and consequences thereof, or, if the lawyer is not qualified to do so, advises the client to seek other legal counsel regarding those issues….” If a lawyer is not competent to provide the counsel required under proposed ER 1.2(d)(3), then ER 1.1 (competence) requires that the lawyer associate a lawyer who has the established competence, and ER 1.2(c) allows the lawyer to limit the scope of representation, with informed client consent.

The language also implicitly recognizes that other state-federal conflicts similar to medical marijuana may arise.

You can read my rule-change petition here. (You know that anyone who registers on the Supreme Court's rules forum can submit petitions or comment on filed petitions, right?)

The practice of law already includes too much stress and uncertainty. Let's reconcile the clear language of ER 1.2(d) with reality and provide certainty for all of us. Let's remove that pretend asterisk.