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Arizona medical-pot law has attorneys in bad spot

Arizonans needing legal help with the new medical-marijuana law could
find themselves adrift, unable to hire an attorney.


by Howard Fischer – Nov. 25, 2010 12:00 AM

     Return To OnlinePot’s Legal Section Main Page  





Passage of Prop 203, Arizona becomes 15th medical marijuana state



Patricia Sallen, ethics counsel for the State Bar of Arizona, said it
may be a violation of the rules laid out by the state Supreme Court
for lawyers to help their clients break the law.

Sallen said the Arizona statute that will formally become law after
the Nov. 29 election canvass, does permit individuals with a doctor’s
recommendation to obtain up to 2 ‡ ounces of marijuana every two
weeks. It also sets up procedures for the state to license non-profit
corporations to sell the drug.

That, Sallen said, could keep attorneys from helping Arizona
corporations set up a dispensary. And it also could mean no help going
to court for any company that believes it was unfairly or unlawfully
denied a dispensary license or even for an individual who claims to be
entitled to a medical-marijuana card.

Sallen’s preliminary opinion is not based just on conjecture of what
the Arizona ethics rules require.

She pointed out the Maine Board of Overseers of the Bar, that state’s
counterpart to her organization, issued a formal opinion earlier this
year after Maine adopted its own medical-marijuana law.

That opinion specifically says that attorneys, although allowed to
provide advice on the law, are not permitted to help their clients
break it. The fact that the federal government is not enforcing its
own anti-drug laws against those complying with state medical-
marijuana statutes is irrelevant, the Maine opinion says.

And Sallen said the ethics rules that regulate Maine attorneys are
virtually identical to the ones by which Arizona lawyers must live.

Sallen said a formal opinion for Arizona lawyers will be coming from
her office on the issue, although she could not say when. She
acknowledged that an opinion warning attorneys to avoid these cases
could leave Arizonans without the legal help they need.

Some of the first questions may come from those needing legal
assistance to incorporate a firm with the specific purpose of setting
up a marijuana dispensary.

But the need for an attorney may become more acute as some of these
companies are denied one of the limited number of state licenses to
operate a dispensary.

Under the terms of Proposition 203, the state can issue permits equal
to 10 percent of the number of pharmacies in Arizona. State Health
Director Will Humble said that probably comes out now to 125.

Humble said he is likely to award the licenses based on an examination
of each applicant’s qualifications. That, in turn, opens the door for
appeals and lawsuits by anyone not on the final list.

"A lawyer may discuss the legal consequences of any proposed course of
conduct," Sallen said. "Otherwise, how could you find out what is
legal and illegal to do?"

But Sallen said the rules also make it clear that attorneys cannot
counsel a client to engage in conduct a lawyer knows is criminal or

And what of someone who needs an attorney to go to court?

"That’s the question we’re looking at," she said. "At what point do
you cross the line?"

The formal opinion from Maine doesn’t provide a bright line of what
attorneys can and cannot do. In fact, the Maine board specifically
dodged the issue, she added.

"Where the line is drawn between permitted and forbidden activities
needs to be evaluated on a case by case basis," that formal opinion

"We cannot determine which specific actions would run afoul of the
ethical rules," it says. "We can, however, state that participation in
this endeavor by an attorney involves a significant degree of risk
which needs to be carefully evaluated."

Sallen said that what attorneys do in California, which has one of the
oldest medical-marijuana laws in the nation, is of little guidance, as
that state’s ethics rules differ from Arizona’s and, in fact, from
most of the rest of the nation.

The rules in Colorado, however, where a medical-marijuana law was
approved in 2000, are identical to Arizona’s.

There has been no formal opinion from that state’s Bar on the issue.
But an article written earlier this year for a Colorado Bar
Association newsletter on the issue of helping companies set up
marijuana-distribution businesses, which are legal under that state’s
laws, provides no more guidance on the issue than the Maine opinion.

"Lawyers who assist medical-marijuana dispensaries may well violate
(the ethics rule) and should not delude themselves by indulging fine
distinctions over the degree of their assistance or knowledge of a
client’s criminal conduct," attorney Alec Rothrock wrote. "The risk of
violation is high and cannot be eliminated."

But Rothrock said that, at least in Colorado, the chances of the state
Bar investigating an attorney and specifically imposing a significant
penalty is probably minimal.

Read more: http://www.azcentral.com/business/abg/articles/2010/11/25/20101125abg-marijuana1125.html#ixzz16buBWmo7