Just lately, I traveled to Chicago to talk at a convention hosted by the American Bar Affiliation (“ABA”) titled From Regs to Riches: Navigating the Quickly Rising Fields of Hashish and Hemp Legislation. The Convention lined a broad vary of hashish subjects together with the stress between state and federal legislation on marijuana, navigating the licensing and start-up processes in a state that has simply gone authorized, advising shoppers within the hemp and hemp-derived CBD house, mental property points, insurance coverage protection for marijuana companies, the burgeoning world marketplace for hashish commerce, and moral points a marijuana lawyer should contemplate. As you most likely guessed from that title, that final level goes to be the main focus of this publish.
Earlier than I get began, I need to present a disclaimer for the non-lawyer readers of the weblog. On this context, except in any other case famous, “Ethics” refers back to the guidelines conduct that govern legal professionals. Legal professionals are afforded quite a lot of belief from shoppers, different legal professionals, courts, and society as an entire. As such, now we have our personal set of Ethics to watch with a view to keep our licenses to apply legislation. Every state governs its personal attorneys and every has its personal guidelines. For instance, these guidelines govern a lawyer’s conduct within the state of Washington. Although no two states Ethics are precisely alike, most states observe the ABA’s Mannequin Guidelines of Skilled Conduct in drafting their very own guidelines.
Mannequin Rule 1.2(d) states the next:
A lawyer shall not counsel a shopper to interact, or help a shopper, in conduct that the lawyer is aware of is prison or fraudulent, however a lawyer could talk about the authorized penalties of any proposed course of conduct with a shopper and will counsel or help a shopper to make a superb religion effort to find out the validity, scope, that means or software of the legislation.
The manufacturing, processing, possession, transportation, and sale of marijuana is a violation of federal legislation below the Managed Substances Act (“CSA”). Many states have legalized both leisure or medical marijuana which conflicts with federal legislation. If a lawyer is working with a shopper who is working a state-legal marijuana enterprise, she is helping the shopper in conduct that she is aware of is prison below federal legislation. Strict compliance with Rule 1.2 would imply that no lawyer might work with a marijuana enterprise in states the place marijuana is authorized. That might be a ridiculous end result as it could deprive a whole trade, one which it closely regulated and sophisticated, of authorized illustration.
In mild of this, many states are including feedback to their model of Rule 1.2 to permit legal professionals to work within the marijuana trade. In the event you’re a lawyer venturing into the marijuana trade, ensure you perceive how your state bar offers with RPC 1.2 (d). Don’t assume that you simply’re “good to go” simply because voters legalized marijuana.
In Washington, our State Supreme Court docket, which regulates legal professionals, added the next remark to Washington’s Rule 1.2:
[A] lawyer could counsel a shopper relating to Washington’s marijuana legal guidelines and will help a shopper in conduct that the lawyer fairly believes is permitted by these legal guidelines. If Washington legislation conflicts with federal or tribal legislation, the lawyer shall additionally advise the shopper relating to the associated federal or tribal legislation and coverage.
The Washington State Bar Affiliation additionally issued a non-binding opinion on whether or not legal professionals can buy marijuana, client marijuana and personal marijuana companies. Spoiler alert, the reply to all three questions is “sure,” with strings connected.
Does that remark change Rule 1.2? Nope. It simply gives steering. Do the remark and steering from WSDA present even an ounce of safety for a lawyer who’s violating federal legislation by “aiding and abetting” marijuana shoppers? No method! Although at this level federal enforcement in opposition to state-legal marijuana appears not possible, legal professionals, like their shoppers, are taking a threat by working on this house. On the finish of the day, a marijuana lawyer wants to simply accept this truth with a view to work on this subject.
For people who do make the leap, listed below are a number of suggestions that had been mentioned on the Ethics panel in Chicago:
- Ensure that your shopper understands that marijuana is prohibited below federal legislation and that nothing in state legislation modifications that. This disclaimer ought to be in each engagement letter that’s in any method associated to marijuana. Want an instance? Right here is the disclaimer that we use for this weblog (additionally conveniently positioned to the fitting of this publish): “Please be conscious that possessing, utilizing, distributing and promoting marijuana are all federal crimes and that this weblog is just not supposed to offer you any authorized recommendation, a lot much less lead you to consider that marijuana is authorized below federal legislation.” Understand that this disclaimer is for a weblog, not an engagement letter, however it states in plain English that marijuana stays unlawful below federal legislation. Nonetheless, don’t assume that one disclaimer is sufficient. Remind your shopper of the federal dangers early and infrequently.
- Restrict the scope of your engagement to state legislation. For instance, if a shopper requests that you simply assist with some authorized points associated to her Washington-licensed marijuana develop you, ought to state that your agency will “present recommendation on the lawful cultivation of marijuana in Washington State.” With out that final bit “lawful cultivation” is just not actually potential as a result of CSA. Don’t assume that everybody who ever reads that engagement letter will know what you meant. Spell it out initially to keep away from ambiguity.
- In the event you reside in a state the place it’s authorized and Moral for a lawyer to devour marijuana, accomplish that responsibly. Legal professionals are statistically more likely to battle with substance abuse issues, compared to non-lawyers, as indicated in a latest report by the ABA Fee on Lawyer Help Packages printed within the Journal of Dependancy Medication. Marijuana has no place on Schedule I of the CSA, alongside heroin and ecstasy. Nonetheless, it may be abused and may negatively influence an lawyer’s apply. In the event you do determine to devour marijuana, both for leisure or medical functions, just be sure you usually are not intoxicated whereas on the job as that would have devastating outcomes for each you and your shopper. In the event you devour after hours, take note of how your physique reacts throughout working hours. In the event you discover that you simply really feel groggy the morning after consuming, it’s possible you’ll need to solely partake on the weekends or, on the very least, keep away from consuming the night time earlier than your opening argument or that high-stakes negotiation. If you’re fighting substance abuse or psychological well being points, you will discover assets right here.
Marijuana legalization has include distinctive Moral challenges and I loved discussing a few of these points on the ABA’s Convention. As a remaining notice, the Convention was sponsored by the Tort Trial and Insurance coverage Apply Part of the ABA and our lawyer-readers who’re enthusiastic about becoming a member of this part, can discover extra data right here.