Arizona lawyers can give medical marijuana advice without facing disbarment
Posted: Thursday, February 24, 2011 11:54 am
By Howard Fischer, Capitol Media Services East Valley Tribune
Arizona lawyers can legally help those who want to help the rest of us get high legally.
The State Bar of Arizona has concluded that attorney are entitled to help clients set up marijuana dispensaries and otherwise navigate the state’s new medical marijuana law even though it means they are aiding people in breaking federal laws. More to the point, the formal opinion means lawyers won’t end up facing ethics charges that could lead to their disbarment.
But that new permission to proceed comes with some caveats.
First, the attorney must reasonably believe that the client’s plans fall within the law that voters approved in November permitting individuals with a doctor’s permission to obtain up to 2 1/2 ounces of marijuana every two weeks. That same law will eventually result in about 125 clinics being set up around the state to sell marijuana, with an undetermined number of sites to cultivate the drug.
Second, the attorneys will be required to inform those they are advising there is still a risk they could wind up in trouble with federal authorities.
Still, the opinion provides the first formal sign that people who need legal help will be able to get it, whether to incorporate to set up a clinic or cultivation site or even just to deal with some problem getting the requisite state permission to buy the drug — legal help that, until now, has been considered “unethical” for lawyers to provide and subjecting them to discipline.
The problem for attorneys has been that formal rules governing their conduct prohibit them from “knowingly counseling or assisting a client to commit a crime.” And while Arizona law makes it legal for some people to cultivate, sell and possess marijuana, all three activities can still land people in federal prison.
Whether that would actually happen, though, remains unclear.
In a 2009 memo, the U.S. Department of Justice said it would not give high priority to prosecuting patients and caregivers who are in “clear and unambiguous compliance” with state medical-marijuana laws. But the federal agency left open the possibility of going after commercial enterprises that sell marijuana.
And while Arizona law requires marijuana dispensaries to be nonprofit operations, they are, in fact, commercial operations.
Given all that, the Ethics Committee concluded that it would not try to discipline attorneys who are helping clients do things that are in compliance with state law. To do otherwise, the panel concluded, would be “depriving clients of the very legal advice and assistance that is needed to engage in the conduct that the state law expressly permits.”