Last Friday, I spoke at an American Bar Association (ABA) panel discussion in Denver. It was the first conference for the ABA’s new global cannabis division and my first live event since the start of COVID. The session discussed the topic “Legal Ethics in International Cannabis”. my colleague Adams Lee Share too, but in another panel that covers International Cannabis Trade. It was nice to go back there.
Like everything to do with cannabis, the lawyer ethics part can be a bog—especially when you start looking at international law and the rules of different jurisdictions around the world. We deal with local codes of ethics regularly and have covered aspects of the US system Previously on this blog. In this post, I’ll stay focused on US law, and make a quick rundown of the rules for the ABA’s Model of Professional Conduct (RPC) to help identify issues.
Since 1983, nearly all states have adopted some version of the CPC, usually with relevant commentaries and opinions. Familiarity with these rules is essential for lawyers. It is also useful for clients who wish to appreciate the standards to be followed by counsel, and the lines of attorney-client relationship.
ABA Model RPC 1.2 (d): Representation Range
This is where we always start. RPC 1.2 (d) Progress:
The attorney may not advise the client to engage or assist the client in behavior that the attorney knows is criminal or fraudulent, but the attorney may discuss the legal consequences of any proposed course of behavior with the client and can advise or assist the client in making a good faith effort to determine the validity, scope, meaning or application of the law .
Suspension  This provision elaborates, to indicate that RPC 1.2(d) “does not preclude counsel from expressing an honest opinion about the actual consequences that appear likely to result from client behavior.” The comment also makes it clear that an attorney providing advice does not necessarily become a party to bad conduct, and that the comment makes a “critical distinction” between an attorney providing legal analysis, and “recommendation of means by which a crime or fraud can be committed with impunity.”
Several states have examined Rule 1.2(d) cases brought by the state to legalize marijuana, both for medical use and for adults. Usually, a moral opinion or rule change follows. In one aspect of the debate there is a strict “script” approach, which prevents lawyers from providing any form of assistance; Whereas the opposing view takes a pragmatic view of the client’s welfare. States have been looking into this issue for ten years now in the context of marijuana. They don’t always do it right.
The Arizona Bar Association was the first to issue an ethics opinion, in 2011. The opinion concluded that an attorney can advise and assist a client under Arizona medical marijuana law, but the attorney must also make clear that the client’s behavior may violate federal Controlled Substances Act . Many other countries have come to similar conclusions, through court rulings and fatwas (you can find a good summary and not very outdated Here).
Other countries have made problematic and unfortunate judgments – and very recently. The Supreme Court of Georgia, for example, issued ranking On June 21, 2021 he rejected a proposal to amend RPC 1.2 (d). This came after the State Bar Association sought to amend the rule to allow attorneys to assist clients in the government’s legal cannabis trade. (Georgia is the offshore waters of cannabis, but it set out to grow, manufacture, and sell its low THC oil in 2015).
In rejecting the request, the Georgia Supreme Court complied with federal law and the illegality of cannabis. It held that the passage of state laws permitting and regulating federal crimes does not alter the 1.2(d) prohibition against “advising and assisting clients in the commission of criminal acts”. Essentially, the court told Georgian businesses that follow Georgia’s laws that they would not receive fair treatment by Georgia courts. This was a disappointing verdict, to say the least.
The order also indicated that the needed amendment to Rule 1.2 would not necessarily be limited to state legal oil, which is low in THC, but “may also apply to a wide range of behavior that constitutes an offense under federal law that has no corollary to an offense.” State penalties.” The optimist might read that as a hint that the court is open to a more focused amendment. For now, though, lawyers and their potential cannabis clients are stuck. An attorney who advises a company that adheres to state law in selling low THC oil could theoretically lose its license.
Given the scope of interpretation and comment on RPC 1.2(d) at the state level, it is critical for any attorney wishing to provide advice in the cannabis industry to become familiar with the state of the local rule. It is important for local businesses to understand whether they will have reliable access to legal services, or whether they are out of date.
ABA Model RPC 8.4 (b): Misconduct
This rule gets less play than 1.2(d), although it is closely related to it. RPC 8.4 (D) It states that:
“It is professional misconduct for a lawyer to commit a criminal act that reflects negatively on the lawyer’s credibility, credibility, or suitability as a lawyer in other respects.”
It’s a very simple rule. One can see how it resonates through almost everything the lawyer says and does.
In the context of cannabis, one example of an 8.4(b) in action involves an attorney who was hired by two medical marijuana dispensaries in Colorado. The attorney created attorney trust accounts (called “IOLTA” accounts) at a local bank, to pay bills and taxes for clients’ stores. However, the bank did not allow accounts linked to the cannabis business, and the lawyer knew this. was taken and Court signature.
Other states, most recently New York, have taken A closer look at 8.4(b) In the context of whether an attorney’s use of marijuana, or a proprietary interest in a marijuana business, “reflects negatively” on the attorney as described above. The New York Bar Association eventually decided that non-excessive marijuana use should be acceptable, and that lawyers should also be allowed to own the cannabis business. However, lawyers have advised us proceed with caution There, read the rules closely in other states.
Other states, such as California, have considered the question of whether 8.4(b) and related considerations should prevent an applicant from initially licensing. In the example of California, the state bar determined:
The use of alcohol or other drugs alone does not provide a basis for identifying a negative moral character, but may be relevant when substance use is associated with acts of misconduct. An applicant who has engaged in dishonorable acts in connection with illicit drug use is not required to obtain treatment or admit addiction in order to demonstrate rehabilitation; However, voluntary enrollment into some form of substance abuse treatment may serve as an indication for rehabilitation.
This seems to be the right approach to us. But every state is unique in terms of admissions processes and behavior of licensed attorneys, and again — attorneys and applicants have to know the rules of the game.
ABA Model RPC 1.1: Proficiency
Discussions about the ethical advocacy of cannabis often overlook a discussion of RPC 1.1.0. This is unfortunate, because base 1.1 is critical. have written by About efficiency issues that surface periodically with law firms large and small in the cannabis field. Ultimately, cannabis is a highly dynamic and complex regulatory field at the state and local levels, as well as the subtle interaction between state and federal laws. The amount of change we see from year to year is Simply unbelievable In most countries.
All of this means that cannabis lawyers are not the domain of generalists, or law firms ill-equipped to operate in the space. When our cannabis business attorneys are hired as specialists expert witnesses, a common set of facts includes a cannabis company suing a lawyer or law firm that gave bad advice; Or, in the words of us lawyers, “advice that does not meet relevant standards of care.” Often, these lawyers did not understand the rules, many of which are vague and counterintuitive. Thus, RPC 1.1 is also an important part of the system in the ethical advocacy of cannabis.