Medical Marijuana? An Attorney's Ethical Considerations

The Federal Legislature in 1970 enacted the Controlled Substances Act, 21 U.S.C. Section 811, et. seq. (hereafter "CSA") which defined marijuana as a "Schedule I" drug and makes it illegal to "manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense," marijuana in any form. In fact, CSA expressly states that there is "no currently accepted medical use in treatment" for marijuana. In spite of the federal government's blanket prohibition on the use of marijuana some twenty (20) states and Washington D.C. have already passed state laws allowing the use of marijuana for medical treatment in certain circumstances.

Pennsylvania may be joining these states shortly as a bill legalizing medicinal marijuana has been approved by the state Senate and is slated for a vote by the House Judiciary Committee in the very near future. Governor-elect, Tom Wolf indicated that if the bill passed he had no intentions of vetoing it. Many supporting the bill point to the potential revenue that legalization could generate, $50-$100 million as estimated in the fiscal notes to the bill.

The federal government has publicly stated that: "It is important to recognize that these state marijuana laws do not change the fact that using marijuana continues to be an offense under Federal law." Although this may be the case, James M. Cole, the Deputy Attorney General of the U.S. Department of Justice issued a memorandum to the Department of Justice in August 2013 entitled "Guidance Regarding Marijuana Enforcement" indicating that it likely is "not an efficient use of federal resources to focus enforcement efforts on seriously ill individuals, or on their individual caregivers," instead indicating that federal resources would be used for enforcement of other provisions of the CSA including but not limited to, preventing the distribution of marijuana to minors and preventing revenue from the sale of marijuana from going to criminal enterprises.

In the past, the federal government had relied on state and local governments to enforce their state prohibitions on marijuana; now that some states have enacted state legislation permitting medicinal marijuana use, the federal government cannot rely on state and local government for enforcement purposes. Nevertheless, certain ethical issues are coming to light with respect to an attorney's ability to advise clients about the state's law, which is at variance with the federal legislation. Specifically, Model Rule of Professional Conduct 1.2(d) prohibits a lawyer from assisting a client "in conduct the lawyer knows is criminal."

Legal ethics boards in six states that have legalized marijuana in some form have issued ethics opinions for practicing lawyers for guidance. For example, Maine and Connecticut take the position that an attorney cannot assist clients engaged in distributing medical marijuana, they may help the client interpret the state legislation. Other jurisdictions have advised their attorneys that negotiating contracts and drafting legal documents may be interpreted as assisting the client in establishing a medical marijuana business and henceforth a violation of federal criminal law. With the potential of a bill legalizing medicinal marijuana in Pennsylvania, Pennsylvania and their attorneys will be forced to grapple with similar issues.