LACBA August 12, 2015

May a California lawyer advise and assist a client on compliance with California's medical-marijuana laws when the same activity would violate federal law?

Short answer: Yes, the lawyer may counsel and assist on California-law compliance, but cannot advise or assist the client in evading federal arrest or prosecution, must limit the scope accordingly, and must advise on federal law and penalties.

Apply this to your situation

This page answers the general question as of 2015. Ezel answers yours: whether it's allowed on your facts, under the current California Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The opinion addresses three questions a California lawyer faces when a client asks for help with marijuana activity that is permitted (or immunized from prosecution) under California law but is still a federal crime under the Controlled Substances Act (21 U.S.C. sections 812, 841, 844, 846): (1) advising the client on how to cultivate, distribute, or consume marijuana under California law; (2) drafting incorporation documents for a marijuana cooperative; and (3) advising a client already engaged in marijuana activity on steps to bring the activity into compliance with California law.

The committee concludes that former Rule 3-210, which prohibits a member from advising the violation of "any law, rule, or ruling of a tribunal," does not bar California-law compliance advice in these scenarios. The opinion treats the federal-law concern as one of scope and disclosure, not categorical prohibition: the lawyer may proceed where the lawyer (a) limits the scope of the representation so the lawyer is not assisting the client in evading federal arrest or prosecution, and (b) advises the client about federal-law penalties so the client's decision is informed.

The opinion draws on People v. Jackson (2012) 210 Cal.App.4th 525, City of Garden Grove v. Superior Court (2007), Qualified Patients Assn. v. City of Anaheim (2010), and the federal-supremacy backdrop of Gonzales v. Raich (2005) 545 U.S. 1. It also cites ABA Model Rule 2.1 (advisor) and Restatement (Third) of the Law Governing Lawyers section 94 as persuasive authority.

In practice

The opinion holds that, under California's rules as they stood in 2015, a member may advise and assist on California marijuana-law compliance, must counsel the client on the federal-law violation and its penalties, and must limit the representation so the lawyer does not help the client evade federal enforcement.

This opinion predates California's November 1, 2018 rule revisions and is framed under former Rule 1-100 and Rule 3-210. Current California Rule 1.2.1 carries forward the rule on advising a client about conduct the lawyer knows is criminal or fraudulent, with a Comment that addresses California's medical-marijuana laws specifically.

Common questions

Q: Can I help a client incorporate a California medical-marijuana cooperative?

A: Per the opinion, yes, provided you advise the client about the federal-law violation and its penalties and you limit the scope so you are not advising or assisting the client to evade federal arrest or prosecution. Former Rule 3-210 does not bar the representation where the California-law compliance advice is itself lawful.

Q: My client wants to know which California compliance steps will reduce the chance of federal enforcement. Can I advise on that?

A: Per the opinion, the lawyer may not assist the client in evading federal arrest or prosecution; that limitation applies even when the underlying state-law conduct is permitted. The committee distinguishes lawful state-law compliance advice from advice aimed at federal-enforcement evasion.

Q: Do I have to tell the client about federal-law penalties even if they already know about them?

A: Per the opinion, yes. The lawyer must advise the client about the federal-law violation and the potential penalties; the committee makes this an affirmative disclosure obligation tied to former Rule 3-210 and Bus. & Prof. Code section 6068(a).

Q: What if my client is already operating a dispensary?

A: The opinion addresses this in its third question. The lawyer may advise the client on bringing the operation into California-law compliance, subject to the same federal-law disclosure and scope limitations.

Background and rules framework

The opinion interprets former California Rule of Professional Conduct 3-210, which prohibits a member from "advising the violation of any law, rule, or ruling of a tribunal unless the member believes in good faith that such law, rule, or ruling is invalid." It also relies on Bus. & Prof. Code section 6068(a) (duty to support state and federal law) and section 6106 (acts of moral turpitude). The state-law backdrop is California's Compassionate Use Act (Health & Safety Code section 11362.5) and Medical Marijuana Program Act (section 11362.7 et seq.); the federal-law backdrop is the Controlled Substances Act.

Citations and references

Rules of Professional Conduct:

Former California Rule 1-100 (preamble and definitions)
Former California Rule 3-210 (advising violation of law)
ABA Model Rule 2.1 (advisor)

Statutes:

Bus. & Prof. Code sections 6067, 6068(a), 6106 (duties of attorneys)
Health & Safety Code section 11362.5 (Compassionate Use Act)
Health & Safety Code section 11362.7 et seq. (Medical Marijuana Program Act)
21 U.S.C. sections 812, 841(a)(1), 844(a), 846 (federal Controlled Substances Act)
18 U.S.C. sections 2, 4, 371 (aiding and abetting, misprision, conspiracy)

Cases:

Gonzales v. Raich, 545 U.S. 1 (U.S. 2005), federal supremacy over state marijuana laws
City of Garden Grove v. Superior Court, 157 Cal.App.4th 355 (2007), medical marijuana and state police powers
County of San Diego v. San Diego NORML, 165 Cal.App.4th 798 (2008)
People v. Jackson, 210 Cal.App.4th 525 (2012), medical-marijuana collective protections
People ex rel. City of Dana Point v. Holistic Health, 213 Cal.App.4th 1016 (2013)
People v. Solis, 217 Cal.App.4th 51 (2013)
Qualified Patients Assn. v. City of Anaheim, 187 Cal.App.4th 734 (2010)
Wasatch Property Management v. Degrate, 35 Cal.4th 1111 (Cal. 2005)
In re Eric J., 25 Cal.3d 522 (Cal. 1979)
In re Lesansky, 25 Cal.4th 11 (Cal. 2001), moral-turpitude standard
City and County of San Francisco v. Cobra Solutions, 38 Cal.4th 839 (Cal. 2006)

Other opinions and authorities cited:

California State Bar Formal Opinion 1983-71
Restatement (Third) of the Law Governing Lawyers section 94

Source

Landing page: https://lacba.org/?pg=ethics-opinions
Original PDF: https://lacba.org/docDownload/2010564

Get today's answer for your situation

You just read a 2015 opinion on this question. Ezel checks the current California Rules of Professional Conduct and answers your specific situation, with citations.

Opens in Ezel Pro. Every answer cites the rules it relies on.