The laws, regulations and public attitudes on cannabis are changing so rapidly it’s hard to keep up.
Just last year, a sweeping draft bill titled the ‘‘Cannabis Administration and Opportunity Act” was introduced in the US Senate. For the first time in history, leaders in the Senate have proposed legislation to decriminalize marijuana at the federal level and effectively end federal prohibition. The bill would, among other things, remove cannabis from the federal list of controlled substances, impact a range of federal agencies from the National Forest Service to the Federal Aviation Authority, and provide for expungement of certain marijuana offenses.
Although the ultimate fate of the bill is unclear, its mere existence marks a sea change in cannabis law.
For lawyers, this poses a number of challenges:
- Understanding the laws of their state – which may differ significantly from those of neighboring states – in order to represent their clients competently.
- Understanding the interplay between federal laws and those in their respective states.
- Navigating the emerging ethical considerations of cannabis law.
- Assessing the risks and opportunities for their own law practice.
- Keeping up with changes in the law, which is evolving at light speed.
Plan now to attend the free, one-hour, live CLE webinar “Cannabis Law Chapter One: Covering the Basics from Ethics to Insurance” on March 30, 2022 at 12 noon CST. This webinar features two of the most experienced, knowledgeable and impactful lawyers in the U.S. on cannabis law: Lisa L. Pittman, chair of the American Bar Association Cannabis Law & Policy Committee, whose pioneering efforts led the ABA to formally embrace this emerging practice area; and Khurshid Khoja, chair of the National Cannabis Industry Association, the country’s oldest and largest cannabis trade organization. The course will highlight key substantive topics, address ethical concerns, offer best practices for risk management, and identify ethical concerns. It will also give you online links and key resources for your continuing education. This free, one-hour webinar is the latest in Alta Pro’s ongoing series of cutting-edge CLE programs. Register here.
Ethics and Cannabis Representation
Rule 1.1 (Competence)
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
The ABA Model Rules of Professional Conduct do not prohibit a lawyer from counselling or assisting a client regarding participation in or withdrawal from business and other opportunities that have occurred because a state law permits medical and/or recreational use of cannabis.
ABA Model Rule 1.2 Scope of Representation &
Allocation of Authority Between Client & Lawyer
Rule 1.2 (d): 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 any 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.
Comment : Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. 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.
Comment : When the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting the client, for example, by drafting or delivering documents that the lawyer knows are fraudulent or by suggesting how the wrongdoing might be concealed. A lawyer may not continue assisting a client in conduct that the lawyer originally supposed was legally proper but then discovers is criminal or fraudulent. The lawyer must, therefore, withdraw from the representation of the client in the matter. See Rule 1.16(a).
See also “Ethical Issues in Representing Clients in the Cannabis Business: One Toke Over the Line” in the ABA Journal.
ABA Model Rule 8.4 Misconduct
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
Comment : Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving moral turpitude. That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category. A pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligation.