Can a North Dakota lawyer move to Minnesota and use physician-recommended medical marijuana while keeping a North Dakota law license?

Plain-English summary

A North Dakota lawyer with a nonterminal medical condition wanted to move to Minnesota to participate in a medical-marijuana treatment program after other treatments failed, while keeping a North Dakota law license. The lawyer asked whether that conduct would violate Rule 8.4(b), arguing medical marijuana use is outside the rule's scope.

The committee concluded the conduct would violate Rule 8.4(b), which makes it professional misconduct to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness. The committee relied on the rule's comment, which notes that a "pattern of repeated offenses, even ones of minor significance when considered separately, can indicate indifference to legal obligations." Because marijuana is a Schedule I controlled substance under federal law with no recognized medical use (21 U.S.C. 812(b)(1), 841(a)(1)), and because the federal government may prohibit marijuana for all purposes regardless of state authorization (Gonzales v. Raich; United States v. Oakland Cannabis Buyers' Coop.), each purchase, possession, or use in Minnesota would violate federal law.

The committee added that North Dakota law reinforced the conclusion. At the time, North Dakota also classified marijuana as a Schedule I substance and criminalized its manufacture, possession, and use for any purpose, including ingestion (N.D.C.C. ch. 19-03.1). The committee cited State v. Kuruc, 2014 ND 95, in which the North Dakota Supreme Court rejected out-of-state marijuana prescriptions as a defense to controlled-substance crimes and reaffirmed the supremacy of federal law. The committee concluded that participating in a medical-marijuana program would be a pattern of repeated offenses indicating indifference to legal obligations, violating Rule 8.4(b). The opinion was approved by a 4 to 2 vote.

In practice

This opinion, approved August 12, 2014, applies North Dakota Rule of Professional Conduct 8.4(b) as it stood at that time, when both federal law and North Dakota law criminalized marijuana for any purpose. The committee held that a North Dakota lawyer's ongoing use of medical marijuana, even under another state's program and on a physician's recommendation, would be professional misconduct under Rule 8.4(b), because the repeated criminal acts would form a pattern of repeated offenses indicating indifference to legal obligations. The committee did not treat a state's authorization of medical marijuana as changing the analysis, given marijuana's continued status as a federal crime.

Common questions

Q: Can a North Dakota lawyer use medical marijuana if another state allows it?

A: The committee concluded it would violate Rule 8.4(b). Because marijuana use remained a crime under federal law (and North Dakota law at the time), ongoing use would be a pattern of repeated offenses indicating indifference to legal obligations.

Q: Why does it matter that the use would happen in a state where medical marijuana is legal?

A: The committee noted that federal law prohibits marijuana for all purposes regardless of state authorization (citing Gonzales v. Raich), so each use in another state would still violate federal law.

Q: Does a single criminal act trigger Rule 8.4(b), or does it require repeated conduct?

A: The committee rested its conclusion on the comment's "pattern of repeated offenses" language, reasoning that participation in a treatment program means repeated use, which indicates indifference to legal obligations.

Q: Did North Dakota law at the time treat medical marijuana any differently than federal law?

A: No. The committee explained that North Dakota classified marijuana as Schedule I and criminalized its use for any purpose, and cited State v. Kuruc, where the state Supreme Court rejected out-of-state marijuana prescriptions as a defense.

Background and rules framework

The opinion interprets North Dakota Rule of Professional Conduct 8.4(b) (Model Rule 8.4, misconduct; criminal acts reflecting on fitness) and its comment on patterns of repeated offenses. It applies the federal Controlled Substances Act (21 U.S.C. 812, 841) and North Dakota's controlled-substances chapter (N.D.C.C. ch. 19-03.1), and relies on United States Supreme Court and North Dakota Supreme Court authority on the supremacy of federal marijuana law.

The opinion is issued under North Dakota Rule for Lawyer Discipline 1.2(B), the safe-harbor provision protecting good-faith reliance on a written ethics-committee opinion.

Citations and references

Rules of Professional Conduct:

• Model Rule 8.4 / N.D.R. Prof. Conduct 8.4(b) (misconduct; criminal act reflecting on fitness)
• N.D.R. Lawyer Discipline 1.2(B) (safe harbor for reliance on a committee opinion)

Statutes:

• 21 U.S.C. 841(a)(1) (prohibited acts; controlled substances)
• 21 U.S.C. 812(b)(1) (Schedule I criteria)
• N.D.C.C. ch. 19-03.1 (19-03.1-04, 19-03.1-05(5)(h), 19-03.1-22.3, 19-03.1-23) (North Dakota controlled substances)

Cases:

• Gonzales v. Raich, 545 U.S. 1 (2005), federal authority to prohibit marijuana despite state law
• United States v. Oakland Cannabis Buyers' Coop., 532 U.S. 483 (2001), no medical-necessity exception in the Controlled Substances Act
• State v. Kuruc, 2014 ND 95, 846 N.W.2d 314, out-of-state marijuana prescriptions no defense; federal supremacy

See also

• CBA Formal Op. 124: Lawyer's Use of Marijuana
• AZ Ethics Op. 11-01: Advising on Medical Marijuana
• CA COPRAC Op. 2020-202: Advising Cannabis Clients

Source

• Landing page: https://www.sband.org/page/ethics_opinions
• Original PDF: https://cdn.ymaws.com/www.sband.org/resource/resmgr/ethics/opinion_14-02.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

STATE BAR ASSOCIATION OF NORTH DAKOTA
ETHICS COMMITTEE
OPINION NO. 14-02

THIS OPINION IS ADVISORY ONLY
QUESTION PRESENTED

The Ethics Committee has been asked to render its opinion on whether Attorney may
live and use medical marijuana prescribed by a physician in Minnesota and be licensed
to practice law in North Dakota.

OPINION

Based on the facts presented below, Attorney would not be able to live and use medical
marijuana prescribed by a physician in Minnesota while being licensed to practice law in
North Dakota. The conduct would be a violation of N.D.R. Prof. Conduct 8.4(b).

APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT
Rule 8.4, N.D.R. Prof. Conduct: Misconduct
FACTS PRESENTED

Attorney, who currently lives in North Dakota, has a nonterminal medical condition
qualifying the attorney for medical marijuana treatment under Minnesota law. Attorney
has tried other treatments, which have been unsuccessful in maintaining Attorney's
desired quality of life. Attorney wishes to move to Minnesota to participate in a medical
marijuana treatment program while continuing to have a license to practice law in North
Dakota.

DISCUSSION

Attorney recognizes that N.D.R. Prof. Conduct 8.4(b) is the governing authority on
whether the conduct would be a per se ethical violation. Attorney suggests that use of
medical marijuana is not within the scope of N.D.R. Prof. Conduct 8.4(b).

The rule provides that “[i]t is professional misconduct for a lawyer to .. . commit a
criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as
a lawyer in other respects[.]” N.D.R. Prof. Conduct 8.4(b). The comment to the rule
notes the distinction between criminal acts that are ethical violations and criminal acts
that are not: “Although a lawyer is personally answerable to the entire criminal law, a
lawyer should be professionally answerable only for offenses that indicate lack of those
characteristics relevant to law practice.” N.D.R. Prof. Conduct 8.4(b) cmt. Beyond that
distinction, the comment points out that recurring criminal acts may also be an ethical
violation: “A pattern of repeated offenses, even ones of minor significance when
considered separately, can indicate indifference to legal obligations.” Id.

The comment's explanation about a pattern of repeated offenses shows why Attorney’s
conduct would be an ethical violation. As Attorney acknowledges, federal law
designates the use of marijuana for any purpose, even a medical one, as a crime. See
21 U.S.C. § 841(a)(1). As a schedule I controlled substance under federal law,
marijuana has been determined to have a high potential for abuse and to have no
accepted medical use for treatment and lack accepted safety for use under medical

supervision. See 21 U.S.C. § 812(b)(1). Thus physicians, practitioners, and
pharmacists are prohibited under federal law from prescribing or dispensing marijuana.
See United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 491 (2001)
(Controlled Substances Act has no medical necessity exception for marijuana).

Further, it is unquestionable that the federal government has authority to prohibit
marijuana for all purposes despite valid state laws authorizing the medical use of
marijuana. See Gonzales v. Raich, 545 U.S. 1 (2005). So if Attorney purchased,
possessed or ingested marijuana in Minnesota, the attorney would be violating federal
law each and every time Attorney did so. In other words, Attorney would be engaging in
a “pattern of repeated offenses” that indicates indifference to legal obligations and
constitute a violation of N.D.R. Prof. Conduct 8.4(b). N.D.R. Prof. Conduct 8.4(b) cmt.

North Dakota law bolsters the conclusion that Attorney's conduct would constitute a
violation. Indeed, North Dakota law on controlled substances — and marijuana in
particular - aligns with federal law. As under federal law, the manufacture, possession,
and use of marijuana for any purpose, even a medical one, is a crime under North
Dakota law. See N.D.C.C. § 19-03.1-23. As under federal law, marijuana is classified
as a schedule I controlled substance and thus has been determined to (1) have high
potential for abuse and (2) have no accepted medical use in treatment in the United
States or lack accepted safety for use in treatment under medical supervision. See
N.D.C.C. § 19-03.1-05(5)(h); N.D.C.C. § 19-03.1-04. North Dakota even criminalizes
marijuana ingestion and provides for prosecution either where the offender takes
marijuana into the body or where marijuana is merely detected in the offender’s body.
See N.D.C.C. § 19-03.1-22.3.

Further, our supreme court has recently recognized North Dakota’s policy against
marijuana and adhering to the supremacy of federal law. State v. Kuruc, 2014 ND 95,
846 N.W.2d 314. Earlier this year, the court in Kuruc considered criminal defendants’
claim that their Washington prescriptions for marijuana provided a defense to controlled
substance crimes. Id. at 1. Recognizing that marijuana was a schedule I controlled
substance, the court explained that “it does not logically follow that there could be a
valid prescription for a substance that has no medical use or lacks accepted safety.” Id.
at 9 33. Rejecting the defendants’ claim, the court reasoned that the legislature did not
enact controlled substance laws “to put North Dakota in the perplexing position where it
must recognize out-of-state marijuana prescriptions even though the same exact
prescription cannot be made legal for its own citizens.” Id. The court also emphasized
that medical marijuana is still illegal under federal law and thus under the Supremacy
Clause, “a state law that conflicts with federal law is without effect.” Id. at {| 34 (citing
U.S. Const. art. VI and State ex rel. Stenehjem v. FreeEats.com, Inc. 2006 ND 84, 7 19,
712 N.W.2d 828).

In short, federal law and North Dakota law and policy show that Attorney’s conduct
would be unlawful and unethical. Attorney’s conduct (participating in a medical
marijuana treatment program) would constitute a “pattern of repeated offenses” that
indicates indifference to legal obligations and constitutes a violation of N.D.R. Prof.
Conduct 8.4(b).

CONCLUSION

Attorney's conduct would frequently violate federal law and North Dakota policy. The

conduct thus would constitute a pattern of repeated offenses in violation of N.D.R. Prof.
Conduct 8.4(b).

This opinion was drafted by Cheri Clark and was approved by the Ethics Committee 4-2
on the 12'" day of August, 2014.

This opinion is provided under Rule 1.2(b), North Dakota Rules for Lawyer Discipline,
which states:

A lawyer who acts with good faith and reasonable reliance on a written
opinion or advisory letter of the ethics committee of the association is not
subject to sanction for violation of the North Dakota Rules of Professional

Conduct as to the conduct that is the subject of the opinion or advisory
letter.