Can California Lawyers Ethically Light Up?

• Jurisdiction: California,United States
• Author: By Wendy L. Patrick
• Publication year: 2019
• Citation: Vol. 25 No. 1

Can California Lawyers Ethically Light Up?*

By Wendy L. Patrick

Wendy Patrick is a San Diego lawyer, past chair and advisor of the California State Bar Ethics Committee (Committee on Professional Responsibility and Conduct), and past chair of the San Diego County Bar Association Legal Ethics Committee. Any opinions expressed in this article are her own, and do not reflect that of her employer or of The Practitioner or the Solo and Small Firm Section. This article does not constitute legal advice.

Election Day 2016 added yet another tourist attraction to the already overpopulated Golden State: marijuana. Despite strong voices in opposition, California voters rolled back the prohibitions to rolling a joint. Yet for California lawyers, who have a duty to "support the Constitution and laws of the United States and of this state" pursuant to California Business and Professions Code section 6068(a) and related provisions, there is more to the story. Although the solution to how to solve the state-federal law discrepancy with respect to marijuana use remains hazy, there are ethical opinions we can review for guidance to clear the air regarding the legal and ethical provisions at issue. California Rules of Professional Conduct, Rule 1-100 states that, although not binding, lawyers should look at California ethics opinions, as well as ethics opinions, rules, and standards from other jurisdictions and bar associations for guidance on professional conduct. Let us review a few opinions that address two questions: Can lawyers represent clients in the marijuana business? And can they personally indulge?

REPRESENTING GREEN-COLLAR CAPITALISTS

Now that marijuana is legal in California, entrepreneurially minded business people are poised to capitalize on the new law—with the help of their lawyers. California Rule 3-210¹, Advising the Violation of Law, states that lawyers "shall not advise the violation of any law ... unless the member believes in good faith that such law, rule, or ruling is invalid." The rule goes on to state that a lawyer may "take appropriate steps in good faith to test the validity" of any law. Lawyers approached by potential clients seeking representation in California's newly defined marijuana business naturally worry about advising law violations, and even aiding and abetting activity that remains a federal offense. Marijuana is still illegal as a Schedule 1 substance under the Controlled Substances Act²; meaning that the Food and Drug Administration...