Ethical Issues, Medical Marijuana & the Practice of Law Panel

Randy Robinson[1]

Mr. John Gleason, Regulation Counsel for the State of Colorado, opened the panel with a discussion of the interplay between the Colorado Rules of Professional Conduct and state medical marijuana laws.  Mr. Gleason discussed Rule 1.2(d), which provides:

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.

While dispensing or consuming medical marijuana is not criminally prohibited by state law, it is still a violation of the Federal Controlled Substances Act.  This presents questions as to attorney’s rights and liabilities in providing counsel to clients who work within the medical marijuana industry.  To date, there has yet to be a case brought against a Colorado attorney for  violating Rule 1.2(d) by providing legal assistance to those selling or purchasing medical marijuana.  However, the buying or selling of medical marijuana–while sanctioned under Colorado law–is a violation of federal law, and attorneys who assist clients in violating the law are subject to penalty under Rule 1.2(d). Notwithstanding this point, Mr. Gleason made clear that, while his office is not actively looking for medical marijuana cases, the policy of his office is to prosecute clear violations of Rule 1.2(d).  Mr. Gleason then provided some general guidance that attorneys can follow in seeking to steer clear of ethical issues.  Attorneys cannot tell a client, “this is what you can do, and how you can get away with it.”  Instead, attorneys are permitted explain to clients the implications of the relevant state and federal laws.

Mr. Gleason did provide an answer to the question of whether an attorney who used medical marijuana consistent with state law could face disciplinary charges.  The policy of the office is that an attorney who has a medical marijuana card and uses the drug for personal use will be viewed by regulation counsel in the same light as an attorney taking any other prescription drug. In reviewing these cases, the basis for determination is not the drug being taken, but whether the lawyer can perform the necessary duties.

Of the nearly 5,000 cases that the Regulation Counsel’s office handles each year, only a small minority deal with medical marijuana and none of these cases have involved Rule 1.2(d).  Instead, most of the cases involve general attorney competency issues.  Mr. Gleason stated that many attorneys do not have a strong understanding of the medical marijuana regulatory laws.

Professor Eli Wald of the University of Denver Sturm College of Law continued the discussion of legal ethics and the implication of Rule 1.2(d).  Professor Wald articulated three hypothetical situations that illustrate the perils of counseling clients in the medical marijuana industry.  First, an attorney is asked to represent a medical marijuana distributor who is charged with a violation of the Federal Controlled Substances Act.  In this hypothetical situation, there is no ethical conflict and an attorney has the right and duty to provide the best possible defense.  In the second scenario, a client comes to an attorney requesting assistance in obtaining a medical marijuana dispensary license.  This is a situation where legal help is likely necessary because the state application process is cumbersome and involves a myriad of complicated forms and requirements.  Professor Wald argues that this situation may fall into a grey area, as the attorney is technically assisting the client in obtaining a license, which is separate and distinct from assisting the client in actually selling marijuana which would be a violation of federal law.  The boundary is crossed when the attorney goes beyond the licensing process and provides advice as to the operation of the dispensary.

Professor Wald’s third hypothetical places an attorney in a situation where he is asked by a client to assist in negotiating a lease for the client’s new medical marijuana dispensary.  Here Professor Wald contends that drafting or negotiating a lease would cross the line from advising a client to giving the client substantive assistance in violating a federal law.  This places dispensary operators in a difficult position because based on this interpretation they are entitled to legal counsel to secure a medical marijuana license, but not entitled to legal counsel to enforce the rights provided by that license.  While Professor Wald recognizes that this creates a moral hazard for attorneys who wish to provide these clients the legal assistance they certainly need, the moral question is insufficient to warrant civil disobedience through an openly defiant violation of the Rules of Professional Conduct (and by implication the Federal law).

Professor Alex Kreit from the Thomas Jefferson School of Law discussed prosecutorial ethics and medical marijuana law.  Professor Kreit argued that prosecutorial decisions must be governed not only by black letter law, but by a prosecutor’s duty to pursue justice.  In an area where state law conflicts with federal law and it is difficult for individuals to fully understand what rights they have, prosecutors should be guided in their decision by the four virtues of justice, courage, honesty, and prudence.  To demonstrate the practical implications of the wide discretion afforded to prosecutors, Professor Kreit discussed the differing approaches in California taken by district attorneys in Oakland and San Diego.  In Oakland, the district attorney has interpreted the medical marijuana statute as being permissive of storefront dispensaries, allowing these businesses to operate free from prosecution.  Conversely, the San Diego County district attorney has interpreted the statute in a more narrow fashion, stating that only traditional “communes” are allowed to distribute medical marijuana.  This narrow interpretation has led to increased prosecution of medical marijuana dispensary owners and operators.

Lastly, recently retired Gilpin County Colorado Judge Frederic Jones discussed the challenges faced by judicial officers in Colorado issuing probation and pre-trial release orders regarding medical marijuana.  Chief Judges have issued explicit orders prohibiting the use of medical marijuana by persons on pre-trial release or probation in six of the twenty-two Colorado judicial districts.  However, there are two Chief Judges that have issued orders explicitly allowing those on pre-trial release or probation to use medical marijuana in conformity with state law.  In the remaining judicial districts this decision is left in the hands of individual judges.  This creates an even thornier issue as marijuana is still illegal under federal law; therefore use of the drug by those on pre-trial release or probation violates Colorado release statutes.  Judge Jones noted that because district court judges are required to follow the orders issued by their Chief Judges, there is and will continue to be a lack of conformity in pre-trial and probation orders regarding medical marijuana. 

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[1] J.D. Candidate, 2013, University of Denver Sturm College of Law.