How far can a Maine lawyer go in advising or assisting a client with a medical-marijuana business?

Plain-English summary

Bar Counsel asked for general guidance on how a Maine lawyer may, consistent with the Rules, advise or represent clients under Maine's new Medical Marijuana Act, which permits dispensaries to provide marijuana to qualifying patients. The difficulty is the interplay with federal law: distributing marijuana remains a federal crime, and the October 2009 Ogden memorandum, while de-prioritizing federal prosecution of those in clear compliance with state medical-marijuana laws, expressly states that it does not legalize marijuana, creates no rights, and that prosecuting commercial marijuana enterprises remains an enforcement priority.

The opinion frames the issue under Rule 1.2 (Maine Rule 1.2(e); ABA Model Rule 1.2(d)): a lawyer may not counsel or assist a client in conduct the lawyer knows is criminal or fraudulent, but may discuss the legal consequences of proposed conduct and may counsel or assist a client in a good-faith effort to determine the validity, scope, meaning, or application of the law. Because the proposed conduct is known to violate federal criminal law, the lawyer's role is limited: the lawyer may help the client test the law in good faith, but may not counsel the client to engage in the dispensary business or assist in doing so. The opinion quotes Comment [9]'s "critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity."

The opinion stresses the Rule draws no distinction between crimes that are enforced and those that are not, so long as both the federal law and the Rule remain unchanged. It notes the federal policy could change and the law be enforced, and that clients might use the medical dispensary and state law as a pretext for other ventures. Where the line falls between permitted and forbidden activity must be evaluated case by case; the Commission cannot specify which actions cross it, but states that an attorney's participation involves a significant degree of risk that must be carefully evaluated.

In practice

Under the Maine rule as the opinion read it in 2010, a lawyer asked to advise or assist a client with a medical-marijuana dispensary must work within Rule 1.2's limits because the conduct is a federal crime. The opinion holds the lawyer may explain the legal consequences and help the client make a good-faith effort to determine the law's validity, scope, meaning, or application, but may not counsel the client to engage in the business or assist in doing so. The opinion holds the analysis is fact-specific and case by case, that the Rule does not distinguish enforced from unenforced crimes, and that an attorney's participation carries a significant degree of risk to be carefully evaluated.

Common questions

Q: Can a Maine lawyer advise a client about the Medical Marijuana Act?

A: Yes, within limits. The opinion concludes a lawyer may discuss the legal consequences of proposed conduct and help the client make a good-faith effort to determine the validity, scope, meaning, or application of the law.

Q: Can the lawyer help the client set up and run a dispensary?

A: No. The opinion concludes that because operating a dispensary is known to violate federal criminal law, Rule 1.2(d) (Maine 1.2(e)) bars the lawyer from counseling the client to engage in the business or assisting in doing so.

Q: Does it matter that the federal government is not currently prosecuting compliant operators?

A: No. The opinion states the Rule draws no distinction between crimes that are enforced and those that are not, and notes federal policy could change so that the law is enforced.

Q: Where exactly is the line between permitted advice and prohibited assistance?

A: The opinion declines to specify. It states the line must be evaluated case by case and that participation in this area involves a significant degree of risk that must be carefully evaluated.

Background and rules framework

The opinion interprets Maine Rule of Professional Conduct 1.2(e) (a lawyer may not counsel or assist a client in conduct the lawyer knows is criminal or fraudulent, but may discuss legal consequences and help test the law in good faith), corresponding to ABA Model Rule 1.2(d), and its Comment [9]. It reads the rule against the federal Controlled Substances Act and the 2009 Ogden memorandum on federal enforcement priorities.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.2(d) (counseling or assisting crime or fraud)
• Maine R. Prof. Conduct 1.2(e) and Comment [9]

Other authorities:

• Memorandum of Deputy Attorney General David W. Ogden (Oct. 19, 2009), federal medical-marijuana enforcement priorities.

See also

• NY State Bar Op. 1024: Counseling Clients Under the Medical Marijuana Law
• Ohio BPC Op. 2016-006: Ethics of Ohio's Medical Marijuana Law
• ABA Formal Op. 491: Avoiding Counseling or Assisting Crime or Fraud

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=110134

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Issued by the Professional Ethics Commission

Date Issued: July 7, 2010

Question

Bar Counsel asks the Commission to render an opinion concerning the general parameters within which an attorney may, consistent with the Maine Rules of Professional Conduct, represent or advise clients under Maine?s new Medical Marijuana Act.
Maine recently enacted legislation permitting the creation of dispensaries for the purpose of providing qualified patients with marijuana for medical treatment. Questions have arisen regarding the role which Maine attorneys may ethically play because of the interplay of Maine?s new law with the Federal prohibition against the distribution of marijuana. This issue has been made more problematic by the guidance, dated October 19, 2009, of the current United States Deputy Attorney General, David W. Ogden. Ogden?s memorandum (?the memorandum?) directs the United States Attorneys:
As a general matter, pursuit of [illegal drug prosecution] 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.
The memorandum, however, makes clear that the Federal law against the distribution of marijuana is still in effect. It recognizes that ?no State can authorize violations of federal law? and that
This guidance regarding resource allegation does not ?legalize? marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil or criminal matter.
The issue, then, is whether and how an attorney might act in regards to a client whose intention is to engage in conduct which is permitted by state law and which might not, currently, be prosecuted under federal law, but which nonetheless is a federal crime. Indeed, the memorandum notes that ?the prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department? and that nothing therein ?precludes investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the production or distribution of marijuana for purpose not authorized by state law.?
Opinion
The ethical framework governing lawyer conduct, the Maine Rules of Professional Conduct, states clearly that:
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 the 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.
M. R. Prof. Conduct 1.2 (e)
Here, the proposed client conduct is known to be a violation of federal criminal law. In those circumstances, the role of the attorney is limited. While attorneys may counsel or assist a client in making good faith efforts to determine the validity, scope, meaning or application of the law, the Rule forbids attorneys from counseling a client to engage in the business or to assist a client in doing so. The limitation is highlighted by the 2009 Comment [9]: to M. R. Prof. Conduct 1.2:
There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.
Maine and its sister states may well be in the vanguard regarding the medicinal use and effectiveness of marijuana. However, the Rule which governs attorney conduct does not make a distinction between crimes which are enforced and those which are not. So long as both the federal law and the language of the Rule each remain the same, an attorney needs to perform the analysis required by the Rule and determine whether the particular legal service being requested rises to the level of assistance in violating federal law. It is worth noting that there is no guarantee that, with a change in policy, administration, or resources, the federal law might ultimately be enforced to the chagrin of lawyers whose conduct enabled the dispensaries. Even under the present policy, it is a situation where potential clients may ultimately, if not initially, use the medical dispensary and state law as a pretext for other more lucrative ventures.
Where the line is drawn between permitted and forbidden activities needs to be evaluated on a case by case basis. Bar Counsel has asked for a general opinion regarding the kind of analysis which must be undertaken. We cannot determine which specific actions would run afoul of the ethical rules. We can, however, state that participation in this endeavor by an attorney involves a significant degree of risk which needs to be carefully evaluated.