Caught in a Haze: Ethical Issues for Attorneys Advising on Marijuana.

• Author: El-Zein, Anna
• Position: NOTE

1. INTRODUCTION

   In 1920, the United States Congress amended the Constitution to outlaw the manufacture, transportation, and sale of alcohol. (1) Despite their aim, Prohibition Era laws were riddled with loopholes and exceptions. (2) Wine, for example, was allowed for religious purposes, which caused church attendance and the purported number of "rabbis" to skyrocket. (3) Similarly, doctors were permitted to prescribe whiskey for a variety of ailments, which caused a significant spike in registered pharmacies. (4) Religion and medicine were just a few of the many loopholes within the Prohibition laws. (5) The illegal sale of alcohol (also called "bootlegging") became increasingly common as stores and clubs (known as "speakeasies") developed a smuggling system to satisfy alcohol-seekers nationwide. (6) A black market emerged to meet the demand for alcohol, and citizens began brewing beer and distilling liquor in their homes. (7) The outlawing of alcohol also exposed millions of Americans to criminal penalties. (8) Courts and jails filled--so much so that prosecutors began making common practice of "plea bargaining" to avoid a severe backlog of cases. (9) Soon, the government realized the laws were not working, and in 1933, Amendment XXI repealed Prohibition; the alcohol industry was freed. (10)

   History has a tendency of repeating itself. Today the story of Prohibition is being relived in the marijuana industry. (11) The illegal sale of marijuana is rampant. (12) Laws prohibiting marijuana have made criminals of millions of Americans. (13) Yet, in some states, qualifying patients may access medicinal marijuana for a variety of ailments, including pain, migraines, and arthritis. (14) Other states allow recreational marijuana use. (15) In fact, some form of marijuana is legal in most states. (16) Yet the possession, sale, and distribution of marijuana are still illegal under federal law. (17) It is not surprising, then, that patients, ordinary citizens, and businesses seek legal advice when confronted with these conflicting sets of laws.

   This conflict between state and federal law puts attorneys in an ethical conundrum. An attorney who counsels an owner of a marijuana dispensary, for example, may face ethical penalties under Rule 1.2(d) of the ABA Model Rules of Professional Conduct. (18) Should attorneys be able to counsel clients on issues in strict compliance with state law without fear of punishment? Are marijuana business owners entitled to advice from legal counsel? (19) This Note seeks to develop and address these issues.

   As a disclaimer, this Note does not advocate for or against the legalization of medicinal or recreational marijuana at the state or federal level. Instead, this Note outlines the history of marijuana legalization and the legal and ethical implications of conflicting federal and state laws. Part II lays the legal landscape of marijuana laws, describing how marijuana came to be criminalized at the federal level, how it has been accepted in various forms at the state level, and the ensuing issues with which the state and federal governments now grapple. Part III catalogs the various state responses to mixed signals from the federal government and Congress's recent attempt to reform the Controlled Substances Act. Lastly, Part IV contemplates implications of the Trump administration's priorities and ultimately suggests practical steps attorneys can take to ensure compliance with state and federal ethical guidelines. Part V concludes.

2. LEGAL BACKGROUND

   Marijuana has not always been illegal. (20) In fact, at one point, marijuana was regularly used by the public and taxed by the federal government. (21) This Part discusses the path marijuana has taken, from its criminalization in federal law to its acceptance under most state laws. Then, this Part examines how the conflicting federal and state law conundrum has left attorneys in an ethical limbo. Finally, it describes the federal government's enforcement (or lack thereof) of ethical violations.

   1. From Criminalization to Liberation

      In 1970, Congress passed the Controlled Substances Act ("the CSA"). (22) As a comprehensive attempt to prevent drug abuse, the CSA organizes over two hundred drugs into five categories, or "Schedules." (23) Schedules compare a drug's potential for abuse with its accepted medical use. (24) Marijuana (along with heroin, LSD, and ecstasy) has been identified as a Schedule I drug, meaning the federal government believes the drug to have a "high potential for abuse," "no currently accepted medical use in treatment in the United States," and "a lack of accepted safety for use of the drug... under medical supervision." (25) The CSA then criminalizes the manufacture, distribution, use, and simple possession of prohibited substances based on their Schedule. (26) States soon followed suit, enacting legislation to criminalize the same substances. (27)

      Since 1970, the majority of states--thirty--have legalized the use of marijuana for medicinal and/or recreational purposes. (28) States have chosen to legalize marijuana despite its categorization as a Schedule I drug. (29) Where medicinal marijuana is permitted, doctors tout its legalization as a necessary step to better treat seizures, multiple sclerosis, side effects of chemotherapy, and Alzheimer's disease. (30) In regards to recreational marijuana, proponents claim that legalization provides a boon to states' tax revenues, (31) decriminalizes petty crimes to reduce skyrocketing incarceration rates, (32) and offers an avenue for control and regulation of the most widely-used street drug. (33)

   2. Leftover Confusion

      Notwithstanding the nationwide trend towards marijuana legalization, the federal government has continued to enforce the CSA. (34) The CSA authorizes countless civil and criminal penalties, ranging from petty fines to life imprisonment. (35) Beyond incarceration, a felony conviction may leave a person unable to vote, possess a gun, enlist in the armed forces, receive scholarships, or enjoy tax credits. (36) Meanwhile, eight states permit recreational marijuana use and twenty-two states allow its medicinal use. (37)

      Where does this leave attorneys? Understandably, the Model Rules prohibit attorneys from counseling or assisting clients in conduct the attorney knows is illegal. (38) Specifically, Rule 1.2(d) states:

      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. (39) Marijuana possession is illegal under federal law, so it follows that an attorney should refrain from counseling clients on marijuana use. (40) Less clear are the consequences an attorney might face after counseling a client in a state where marijuana is legal. (41) The Model Rules provide some direction, but the words "counsel" and "assist" have been interpreted inconsistently in this context. (42)

      In the disciplinary setting, Rule 1.2(d) is considered a "close relative... of the criminal law of aiding and abetting... however, the principle of Rule 1.2(d) is much easier to state than to apply." (43) Attorneys need guidance to determine whether they should counsel clients on marijuana use and if so, the scope of any assistance they should provide. Despite the need for direction, state bar organizations and the federal government have continued to skirt these issues, leaving attorneys in the dark. (44)

   3. History of Enforcement

      Attorneys who violate Rule 1.2 are generally subject to two types of sanctions. (45) First, every state has a disciplinary body that punishes attorneys for ethical violations, which could result in probation, suspension, or disbarment. (46) Second, the federal government prosecutes attorneys for violations of criminal law, which results in a seizure of funds or, in some cases, incarceration. (47) This Section addresses the Department of Justice's communication in regards to its prosecutorial "priorities" for marijuana-related crimes, specifically in states that have legalized marijuana in some form. (48) This Section first examines the federal government's response to marijuana legalization, as states have often formulated their ethical guidelines in light of changes to federal policy. (49) This is distinct from Part III of this Note, which discusses how state courts and ethics boards have reacted to marijuana legalization.

      In 2009, Deputy Attorney General David W. Ogden, responsible for establishing enforcement priorities for the federal government, issued a memorandum offering guidance to U.S. Attorneys ("the Ogden Memo"). (50) In it he declared, "The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States." (51) But he continued, "As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." (52) In short, the Ogden Memo indicated that the federal government should not, and would not, pursue prosecution of conduct authorized by state law--including marijuana legalization. (53)

      In 2011, Deputy Attorney General James M. Cole issued the first of what would eventually become three memoranda about the discrepancy between federal and state marijuana laws. (54) The first reiterated the message of the Ogden Memo but limited its scope, stating, "The Department's view of... the Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes." (55) It continued, "The Ogden Memorandum was never intended to shield such activities from federal...