Medical Marijuana: Balancing the Rights of Clients and Ethical Dilemmas of Legal Counsel

By Ayensa Millan

In the 2010 general election, Arizonans approved proposition 203, titled the “Arizona Medical Marijuana Act” (“Act”).[1]  The Act amended Title 36 of the Arizona Revised Statutes (“A.R.S.”) by adding §§ 36-2801-2819 and A.R.S. § 43-1201, “which legalized medical marijuana for use by people with certain ‘chronic or debilitating’ diseases.”[2]  However, under Title 21 U.S.C. § 841(a)(1) of the Federal Control Substances Act (“CSA”), the manufacturing, distributing or possessing marijuana with intent to distribute continues to be illegal.  The obvious issue is how to resolve these conflicting state and federal laws.  The issue is especially sticky when it comes to counsel’s ability to advise a client about an activity that is permitted under the Act, but violates federal law.[3]

Arizona Ethics Rule 1.2(d) establishes 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 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.”[4]

The State Bar of Arizona has issued an opinion providing guidance to lawyers who might find themselves in this legal gray area.  The opinion states that lawyers may provide legal assistance “only if: (1) at the time the advice or assistance is provided, no court decisions have held that the provisions of the Act relating to the client’s proposed course of conduct are preempted, void or otherwise invalid; (2) the lawyer reasonably concludes that the client’s activities or proposed activities comply fully with state law requirements; and (3) the lawyer advises the client regarding possible federal law implications of the proposed conduct if the lawyer is qualified to do so, or recommends that the client seek other legal counsel regarding those issues and appropriately limits the scope of the representation.”[5]  To further clarify this issue, the U.S. Department of Justice (“DOJ”) released an opinion, which stated that “[t]he prosecution of individuals and organizations involved in the trade of any illegal drugs and the disruption of drug trafficking organizations is a core priority of the [DOJ].  This core priority includes prosecution of business enterprises that unlawfully market and sell marijuana.  Accordingly, while the [DOJ] does not focus its limited resources on seriously ill individuals who use marijuana as part of a medically recommended treatment regimen in compliance with state law as stated in the [DOJ Memorandum], they will enforce the CSA vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.”[6]

Although these opinions provide some guidance to lawyers, this issue will not be completely clarified until the federal courts decide whether state law will be pre-empted by federal law.   The opinion released by the State Bar of Arizona states that the lawyer may provide an honest opinion to the client and may assist the client as long as it “clearly and unambiguously” falls within state law.  Clearly, it cannot be expected for lawyers to monitor the moves of their clients in order to ensure that their clients are complying with the law and not going beyond the perimeters permitted by the Act.  Unless federal courts take on this question and not simply leave it to state bar associations to try to answer it, lawyers lawyers may find themselves in situations where a client can potentially be manufacturing and distributing marijuana for illegal purposes without the knowledge of the lawyer, who can later find himself or herself facing charges that can lead to disbarment.   Lawyers should never find themselves in a position where they have to choose between providing effective legal representation or protecting their own legal careers.

3/30/11 Update: Arizona Department of Health Services Releases Regulations on Medical Marijuana.[7]


[1] 11-01 Op. State Bar of Arizona 1 (2011).
[2] A.R.S. §§ 36-2801, -2819 (Supp. 2010); A.R.S. § 43-1201(Supp. 2010).
[3] 21 U.S.C. § 841(a)(1) (2010).
[4] Arizona Ethics Rule 1.2(d) (2010)
[5] 11-01 Op. State Bar of Arizona at 6.
[6] Id. at 2.
[7] Dylan Smith, Arizona’s Medical Marijuana Rules Released, TUSCON SENTINEL, Mar. 28, 2011, http://www.tucsonsentinel.com/local/report/032811_medical_marijuana.

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