CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Saturday, September 1, 2012

Kamin & Wald on Prosecution of Medical Marijuana Lawyers

Kamin samSam Kamin and Eli Wald (University of Denver Sturm College of Law and University of Denver Sturm College of Law) have posted Medical Marijuana Lawyers: Crusaders or Outcasts? on SSRN. Here is the abstract:

While marijuana remains a prohibited substance under federal law – one whose manufacture, possession, or distribution is a serious felony – 17 states plus the District of Columbia have legalized the drug for certain medical uses. This tension between state and federal law creates confusion for all of those who work in the emerging medical marijuana (“MMJ”) industry. As marijuana moves from the shadows to the storefronts, it becomes a business. Businesses have employees, shareholders and leases; they must comply with state and local zoning ordinances and pay their taxes. In most businesses, proprietors turn to lawyers for help with these and other legal issues. Lawyers incorporate businesses, they write leases and employment agreements, they help navigate the labyrinth of regulatory compliance and ensure that taxes are being paid promptly and accurately.

This usual relationship is obviously and necessarily complicated by the fact that the manufacture and sale of marijuana remains a federal offense punishable by up to twenty-five years in prison. While a state may choose to de-criminalize, medicalize, or even legalize marijuana, it does not have the power to undo the federal prohibition of the drug. Thus, an attorney engaged by a marijuana practitioner to do the work that lawyers traditionally do for businesses necessarily puts herself at risk. Because all lawyers have an obligation not to knowingly assist criminal conduct – and because their clients’ conduct is by definition criminal – attorneys who do any legal work for MMJ clients face the possibility of both significant ethical and criminal consequences for their actions. 

In this essay, we discuss the ethical and criminal provisions that impact a lawyer’s representation of those working in the MMJ industry. We show that under traditional readings of both criminal law and the Model Rules of Professional Responsibility, an attorney is prohibited from providing most kinds of legal assistance to a medical marijuana client. We argue, however that a literal reading of the rules would have serious negative repercussions in those states that have enacted MMJ regulations. Without the participation of attorneys, important state policies regarding access to medicine and the allocation of criminal justice resources will be frustrated; where a state has chosen to regulate marijuana as medicine, lawyers are a necessary part of the implementation of that policy decision. 

There are important limits to this representation, however. Some of these limits are easy to define, while others are far more amorphous. We borrow from the law of accomplice and co-conspirator liability to give shape to the line between permitted and forbidden legal help. We argue that so long as lawyers merely provide the same services on the same terms to their MMJ clients that they do to their other clients, they violate neither their ethical obligations nor the prohibitions of the criminal law. 

Using specific examples, we give much-needed guidance to attorneys engaged in this emerging and fraught area of practice. Our proposed reading of Rule 1.2(d) establishes that lawyers may generally help MMJ clients address the majority of their legal needs; attorneys may defend MMJ clients charged with violations of the Controlled Substances Act, may serve as lobbyists in challenging federal law and can advise clients about the state of the law. Lawyers may also generally help these clients with compliance work – such as filing for a license to own and operate a medical marijuana dispensary – and may negotiate leases, draft contracts, and advise clients about employment matters. In most instances, we argue, such conduct will not violate Rule 1.2(d) at all because lawyers lack the intent necessary for assistance of criminal activity. In those situations where lawyers’ conduct does violate Rule 1.2(d), we argue, there may nonetheless be arguments for providing legal services to MMJ practitioners, though lawyers proceed here at their peril.

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