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Survey of Marijuana Law in the United States: Issues Facing Attorneys

Articles Regarding Issues Facing Attorneys

Lawyers, Marijuana, and Ethics

Author: Peter A. Joy and Kevin C. McMunigal 

As state marijuana laws have dramatically changed in recent years, more and more lawyers have asked state ethics authorities for guidance about how these changes in the legal landscape impact the ethical obligations of and limitations on lawyers. May lawyers in a state that has decriminalized marijuana, for example, advise and assist clients engaged in marijuana-related businesses such as growing, distributing, or selling marijuana in conformity with state law? Some state supreme courts have amended their ethics rules specifically to answer such questions. In other states, ethics authorities such as the state bar have issued opinions addressing them. In still other states, ethics authorities have yet to provide any guidance at all. In this column, we review the guidance state ethics authorities have offered so far to their lawyers about how to practice ethically under the new marijuana regimes found now in more than half of the American states.

Professional Ethics- The High Risk of Going Green: Problems Facing Transactional Attorneys and the Growth of the State-Level Legal Marijuana Industries

Author: Ian Wagemaker 

This Note highlights some of the most critical limitations facing the legal cannabis markets, flowing largely from the potentially severe federal criminal penalties and the resulting lack of legal advice to facilitate legitimate business and state regulatory compliance. Part I of this Note will provide a background of the legal history of cannabis in the United States at both the state and federal levels. It will also highlight the unique status of the legal cannabis industries in the United States and how they present a wide array of problems for investors, businesses, and attorneys looking to provide transactional assistance to clients involved in these emerging state-level legal markets. Part II of this Note will examine the implications on ethical considerations and professional conduct for transactional attorneys who provide assistance to entities involved in the legal cannabis industries. Part III of the Note will then briefly discuss why attorneys are needed by businesses operating within the industry, and the potential results if they are prohibited from assisting clients operating within the legal cannabis markets. This Note examines the issues inherent in the legal cannabis industries faced by attorneys, business owners, and investors created by the rapid expansion in state-level legalized cannabis legislation in lieu of the complete federal prohibition of marijuana. More specifically, this Note will address the ethical and professional conduct-related issues presented to transactional attorneys who provide assistance to clients involved in the emerging legal cannabis markets. The professional limitation on the conduct of attorneys presents a major impediment to the growth, stability, and amount of business and investment opportunity aimed at capitalizing on the uncharted territory of the legal cannabis markets that many experts are seeing as "the next great American industry."

Marijuana: Medical and Retail—Selected Legal Issues

Authors: Todd Garvey, Charles Doyle, David H. Carpenter 

The federal Controlled Substances Act (CSA) outlaws the possession, cultivation, and distribution of marijuana except for authorized research. More than 20 states have regulatory schemes that allow possession, cultivation, and distribution of marijuana for medicinal purposes. Four have revenue regimes that allow possession, cultivation, and sale generally. The U.S. Constitution’s Supremacy Clause preempts any state law that conflicts with federal law. Although there is some division, the majority of state courts have concluded that the federal-state marijuana law conflict does not require preemption of state medical marijuana laws. The legal consequences of a CSA violation, however, remain in place. Nevertheless, current federal criminal enforcement guidelines counsel confining investigations and prosecutions to the most egregious affront to federal interests. Legal and ethical considerations limit the extent to which an attorney may advise and assist a client intent on participating in his or her state’s medical or recreational marijuana system. Bar associations differ on the precise boundaries of those limitations. State medical marijuana laws grant registered patients, their doctors, and providers immunity from the consequences of state law. The Washington, Colorado, Oregon, and Alaska retail marijuana regimes authorize the commercial exploitation of the marijuana market in small taxable doses. The present and potential consequences of a CSA violation can be substantial. Cultivation or sale of marijuana on all but the smallest scale invites a five-year mandatory minimum prison term. Revenues and the property used to generate them may merely be awaiting federal collection under federal forfeiture laws. Federal tax laws deny marijuana entrepreneurs the benefits available to other businesses. Banks may afford marijuana merchants financial services only if the bank files a suspicious activity report (SAR) for every marijuana-related transaction that exceed certain monetary thresholds, and only if it conducts a level of due diligence into its customers’ activities sufficient to unearth any affront to federal interests. Marijuana users may not possess a firearm or ammunition. They may not hold federal security clearances. They may not operate commercial trucks, buses, trains, or planes. Federal contractors and private employers may be free to refuse to hire them and to fire them. If fired, they may be ineligible for unemployment compensation. They may be denied federally assisted housing. At the heart of the federal-state conflict lies a disagreement over dangers and benefits inherent in marijuana use. The CSA authorizes research on controlled substances, including those in Schedule I such as marijuana, that may address those questions. Members have introduced a number of bills in the 114th Congress that speak to the conflict. Additionally, a few marijuana related provisions were enacted into law late in the 113th Congress. This report is available in an abridged form, without footnotes or citations to authority, as CRS Report R43437, Marijuana: Medical and Retail—An Abbreviated View of Selected Legal Issues, by Todd Garvey and Charles Doyle. Portions of this report have been borrowed from CRS Report R43034, State Legalization of Recreational Marijuana: Selected Legal Issues, by Todd Garvey and Brian T. Yeh.

Hazy Ethics: Access to Legal Counsel for Marijuana Businesses

Author: Chris Hilderbrand 

This Note, expanding on A. Claire Frezza's early work discussing this trend, will provide updated analysis of recent state bar association ethics opinions regarding permissible conduct for lawyers counseling clients on matters pertaining to medical and recreational marijuana. Part I of this Note will provide a brief background on the Controlled Substances Act. Part II will review state medical and recreational marijuana legislation. Part III will address the conflict between federal and state laws. Part IV will discuss Rule 1.2(d) of the Model Rules, which proscribes lawyers from assisting clients in undertaking criminal activity. Part V will survey recent trends in state ethics opinions surrounding the issue of lawyer conduct regarding medical marijuana in Colorado, Connecticut, Washington, Nevada, and Minnesota. Part VI will analyze this trend, and suggest that Colorado's approach to the hazy dilemma posed by medical and recreational marijuana heralds the beginning of an emerging trend among state bar associations.

Representing Clients in the Marijuana Industry: Navigating State and Federal Rules

Authors: Eli Wald, Eric B. Liebman, and Amanda R. Bertrand 

This article discusses the practical consequences of the District of Colorados partial rejection of Colo. RPC 1.2, Comment 14.

Is Assisting Medical Marijuana Dispensaries Hazardous to a Lawyer's Professional Health?

Author: Alec Rothrock 

Colorado Rule of Professional Conduct 1.2(d) states, in part, that a lawyer shall not "counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal."' A lawyer who provides legal services to a medical marijuana dispensary does not assist in his client's violation of Colorado criminal laws banning the possession and sale of marijuana as long as the dispensary qualifies as a caregiver under article 18, section 14 of the Colorado Constitution and complies with that section and other legal requirements. Is the lawyer therefore in compliance with Colo. RPC 1.2(d)? The answer is "no," not if the same conduct violates federal criminal law. The analysis and answer are no different under Amendment 64 to the Colorado Constitution with respect to a lawyer's assistance of a client in the recreational marijuana business.

Litigating Disputes Involving the Medical Marijuana Industry

Author: Eric J. Moutz

Over the past two years, Colorado's medical industry has generated more than its fair share of private business litigation.' Handling these cases requires sensitivity to the practical and legal issues that confront the industry. Some of the more important of these issues are: understanding and mitigating the risk of criminal prosecution; responding effectively to regulatory issues that arise during litigation; handling novel legal issues, including the enforceability of agreements that are or become illegal; and (4) navigating ethical traps and issues involving clients and opposing parties. This article provides an introduction to these issues and some basic suggestions for effectively addressing them. This article provides an overview of representing clients in the medical marijuana industry, including risks, regulatory issues, and ethical considerations.

Public Lawyers and Marijuana Regulation

Authors: Sam Kamin and Eli Wald 

This article builds on that analysis, taking on the particular issue of the public lawyer’s’ role in marijuana regulation. For government lawyers, the key issues in exercising discretion in the context of marijuana are not clients’ access to the law and equality but rather determining the clients’ wishes and serving them diligently and ethically. Lawyers representing state agencies, legislatures and the executive branch of government draft and interpret the rules and regulations regarding marijuana. Lawyers for federal, state and local governments then interpret those rules to determine the obligations and responsibilities of those they represent and to help their clients meet those obligations and carry out their required tasks. Both state and federal prosecutors are charged with determining what conduct remains illegal under the new rules and, perhaps more importantly, with exercising discretion regarding whom to prosecute and to what extent.

Marijuana Lawyers: Outlaws or Crusaders?

Authors: Sam Kamin and Eli Wald 

In this Article, we discuss the ethical and criminal provisions that impact a lawyer's representation of clients working in the emerging marijuana industry. We show that-under a traditional, strict reading of both criminal law and the Model Rules of Professional Conduct, an attorney is prohibited from providing most kinds of legal assistance to a marijuana client. However, such a reading of the rules would have serious negative repercussions in those states that have moved to decriminalize marijuana. Without the participation of attorneys, important state policies will be frustrated; where a state has chosen to regulate marijuana as medicine or to tax and regulate it like alcohol, lawyers are a necessary part of the implementation of these policy decisions. Furthermore, depriving marijuana clients access to lawyers undermines the core values of client autonomy and equality under the law.

Weeding Out Ethical Issues: The Budding Cannabis Industry and Your License to Practice Law

Author: Jennifer Goldstein

This paper argues that attorneys can and should strike a balance between their duties to their clients and as ethical officers to the legal system in states with legal marijuana. Section II presents a brief history surrounding cannabis use and the legal history of marijuana prohibition in the United States. Section III describes the current tension between state and federal law. Section IV discusses the ethical dilemmas attorneys face during the current state of legalization and advising the quickly emerging cannabis industry. Section V focuses on the current state of legalization from an economic, tax, and social justice perspective. Section VI concludes with a discussion of cannabis as a mainstream and bipartisan political issue, drawing on parallels with alcohol prohibition.

Reflections on Medical Marijuana Prosecutions and the Duty to Seek Justice

Author: Alex Kreit 

The application of Model Rule 1.2(d) to attorneys who advise patients and providers on how to comply with state medical marijuana laws undoubtedly presents a focused and pressing question of professional ethics. This essay argues that medical marijuana prosecutions raise equally challenging-albeit more nebulous-ethical problems. In particular, the prosecution of medical marijuana patients and providers presents difficult and important questions about the exercise of discretion in light of the prosecutor's duty to seek justice. This essay does not seek to offer prosecutors specific advice about how to view medical marijuana prosecutions. Instead, it aims to illuminate some of the ethical issues a conscientious prosecutor should thoughtfully consider in deciding whether and how to pursue a medical marijuana prosecution. Part I provides an overview of the prosecutor's ethical duty to seek justice and not merely to convict. Part II considers how this ethical duty may be implicated in federal and state medical marijuana prosecutions. I argue that medical marijuana cases can present particularly difficult ethical challenges for prosecutors because they involve a uniquely conflicted area of law that makes the careful exercise of prosecutorial discretion all the more important. Part III offers concluding remarks.

Got Ethics? Ethical Issues Facing Attorneys

Marijuana legalization leads to ethical dilemmas for bar associations and attorneys. Technically because marijuana sale and use is illegal under federal law, an attorney advising a client regarding marijuana businesses is arguably aiding and abetting the perpetuation of a known federal offense. Advising clients on marijuana is one issue. Another is the use of marijuana by attorneys. Is it an ethical violation for a lawyer to commit a federal offense by using marijuana? On the state level bar associations and attorneys are discussing these issues. 


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