From Huffington Post: "The House Judiciary Committee passed a bill yesterday that would make it a federal crime for U.S. residents to discuss or plan activities on foreign soil that, if carried out in the U.S., would violate the Controlled Substances Act (CSA) -- even if the planned activities are legal in the countries where they're carried out. The new law, sponsored by Judiciary Committee Chairman Rep. Lamar Smith (R-Texas) allows prosecutors to bring conspiracy charges against anyone who discusses, plans or advises someone else to engage in any activity that violates the CSA, the massive federal law that prohibits drugs like marijuana and strictly regulates prescription medication."
To follow up on an example discussed in the Huffington Post article, suppose a client says to her lawyer, "I'm traveling to Amsterdam and would like to smoke some hash while I'm there. Is that lawful?" The lawyer then discusses conduct with the client that, if done in the US, would violate the Controlled Substance Act. Notice that a literal application of the statute (at least as it's described in the article) wouldn't disitinguish between a lawyer discussing the issue and counseling "no, don't do it," a lawyer discussing it by saying, "it's a gray area," and a lawyer saying, "if it's lawful in Amsterdam, you may." In all three situations, the lawyer is discussing conduct that, if done in the US, is illegal.
I don't mean to sound like Chicken Little, but as we enact more federal statutes that prohibit planning/discussions (e.g., discussions about bankruptcy, debt collection, controlled substances, etc.) are we outlawing ordinary lawyering at the margins?
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