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Issued: July 7, 2010
Return
To OnlinePot's Legal Section Main Page
Changes
to Maine medical marijuana program coming; all patients must register By Jan 1st
2011
Question
Bar Counsel asks the Commission to render an opinion concerning the general
parameters within which an attorney may, consistent with the Maine Rules of
Professional Conduct, represent or advise clients under Maine’s new Medical
Marijuana Act.
Maine recently enacted legislation permitting the creation of dispensaries for
the purpose of providing qualified patients with marijuana for medical
treatment. Questions have arisen regarding the role which Maine attorneys may
ethically play because of the interplay of Maine’s new law with the Federal
prohibition against the distribution of marijuana. This issue has been made more
problematic by the guidance, dated October 19, 2009, of the current United
States Deputy Attorney General, David W. Ogden. Ogden’s memorandum (“the
memorandum”) directs the United States Attorneys:
As a general matter, pursuit of [illegal drug prosecution] priorities should not
focus federal resources in your States on individuals whose actions are in clear
and unambiguous compliance with existing state laws providing for the medical
use of marijuana.
The memorandum, however, makes clear that the Federal law against the
distribution of marijuana is still in effect. It recognizes that “no State can
authorize violations of federal law” and that
This guidance regarding resource allegation does not ‘legalize’ marijuana or
provide a legal defense to a violation of federal law, nor is it intended to
create any privileges, benefits, or rights, substantive or procedural,
enforceable by any individual, party or witness in any administrative, civil or
criminal matter.
The issue, then, is whether and how an attorney might act in regards to a client
whose intention is to engage in conduct which is permitted by state law and
which might not, currently, be prosecuted under federal law, but which
nonetheless is a federal crime. Indeed, the memorandum notes that “the
prosecution of commercial enterprises that unlawfully market and sell marijuana
for profit continues to be an enforcement priority of the Department” and that
nothing therein “precludes investigation or prosecution where there is a
reasonable basis to believe that compliance with state law is being invoked as a
pretext for the production or distribution of marijuana for purpose not
authorized by state law.”
Opinion
The ethical framework governing lawyer conduct, the Maine Rules of Professional
Conduct, states clearly that:
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 the 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. M. R. Prof. Conduct 1.2 (e)
Here, the proposed client conduct is known to be a violation of federal criminal
law. In those circumstances, the role of the attorney is limited. While
attorneys may counsel or assist a client in making good faith efforts to
determine the validity, scope, meaning or application of the law, the Rule
forbids attorneys from counseling a client to engage in the business or to
assist a client in doing so. The limitation is highlighted by the 2009 Comment
[9]: to M. R. Prof. Conduct 1.2:
There is a critical distinction between presenting an analysis of legal aspects
of questionable conduct and recommending the means by which a crime or fraud
might be committed with impunity.
Maine and its sister states may well be in the vanguard regarding the medicinal
use and effectiveness of marijuana. However, the Rule which governs attorney
conduct does not make a distinction between crimes which are enforced and those
which are not. So long as both the federal law and the language of the Rule each
remain the same, an attorney needs to perform the analysis required by the Rule
and determine whether the particular legal service being requested rises to the
level of assistance in violating federal law. It is worth noting that there is
no guarantee that, with a change in policy, administration, or resources, the
federal law might ultimately be enforced to the chagrin of lawyers whose conduct
enabled the dispensaries. Even under the present policy, it is a situation where
potential clients may ultimately, if not initially, use the medical dispensary
and state law as a pretext for other more lucrative ventures.
Where the line is drawn between permitted and forbidden activities needs to be
evaluated on a case by case basis. Bar Counsel has asked for a general opinion
regarding the kind of analysis which must be undertaken. We cannot determine
which specific actions would run afoul of the ethical rules. We can, however,
state that participation in this endeavor by an attorney involves a significant
degree of risk which needs to be carefully evaluated.
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