Trump administration's change on pot policy shows why we need to amend ER 1.2(d)
If you're an Arizona lawyer and you represent clients in the medical-marijuana industry — or you take medical marijuana yourself — these recent headlines should have caught your attention:
Because, if you're an Arizona lawyer, and you represent clients in the medical-marijuana industry — or you take medical marijuana yourself — you already should know the inherent ethical and legal problems.
Let's review:
We have a state law authorizing medical marijuana. Other states also allow recreational marijuana.
Bad news: Federal law makes anything to do with marijuana criminal.
More bad news: Our 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.” 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).
Good news: During the Obama presidency, the U.S. Department of Justice took a hands-off approach to enforcing federal marijuana laws in states that have legalized the drug for medical or recreational purposes, advising that it would be a better use of federal resources to not prosecute under federal law patients and their caregivers who are in “clear and unambiguous compliance” with state laws.
More good news: In 2011, the State Bar of Arizona’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 language of ER 1.2(d) with conduct that Arizona legally allows. Its conclusion in short: despite ER 1.2(d), Arizona lawyers need to be able to be involved with the state law and they can be, as long as they advise their clients about the federal issues.
And the new recent bad news: the DOJ has rescinded the Obama era hands-off approach.
At this point, read my previous blog post outlining this issue and discussing the State Bar's ethics opinion.
I filed a rule-change petition in 2016 that proposed amending our ethical rules to deal with the between the lawyer rules and federal law and would amend ER 1.2(d) to add an exception for complying with Arizona law:
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) and may 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 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.
My bottom line was this: if the feds want to prosecute a lawyer who, for example, represents a medical-marijuana dispensary, that's one thing. But that prosecution, possible conviction and the underlying conduct should not be considered a violation of our ethical rules if the lawyer followed state law.
The Supreme Court’s own Attorney Regulation Advisory Committee supported the proposal. Arizona Attorneys for Criminal Justice, a statewide organization of criminal defense lawyers, law students and associated professionals, supported the proposal. The State Bar supported the proposal, with minor proposed tweaks. The only filed opposition came from the Maricopa County Attorney’s Office.
You can read my 2016 petition and the comments filed in support and against it here.
In August 2016, without comment or explanation, the Arizona Supreme Court denied my petition.
The Court rarely, if ever, explains why it denies a rule-change petition. But in a perfect world, it would have. It's in charge of Arizona lawyers. We've got an ethical rule that clearly applies and a non-binding ethics opinion that created -- out of whole cloth -- an exception to that rule.
I have revised and refiled my petition, and it’s circulating for public comment. Get my 2018 petition, R-18-0009, here. Comments can be filed on or before May 21, 2018.
To me, this isn’t an issue of states’ rights, or whether marijuana should or shouldn’t be a federal crime. The issue is whether ER 1.2(d) means what it says, and the need to change it to reflect reality.
It’s even more important now that so many Arizona lawyers are involved with our thriving medical-marijuana industry and the nine-year-old DOJ position has been changed.