Today my state, which more or less invented the idea of locking people up and throwing away the key for possession of marijuana, took a baby step forward when the governor announced in his annual speech that he would install a feeble version of the medical exception. Apparently Cuomo can do so unilaterally, bypassing the dysfunctional legislature. Progress...
...and a problem for professional responsibility. A couple of years ago John blogged about a nasty piece of work that made it out of the House Judiciary Committee: a ban on discussing one’s plan (however tentative or inchoate it might be) to use prohibited drugs outside the United States even if that planned use is permitted by local law. Co-sponsored by Adam Schiff! With the death of this bill in the Senate no harm done, I guess, but the issue now has a live variant.
It comes from the convergence of three developments. First, almost half the U.S. states—home, by my guesstimate, to about half the national population—have along with New York opted to permit medical marijuana. Second, Colorado and Washington have installed limited decriminalization. Third, the Department of Justice announced last August that the Controlled Substances Act notwithstanding, federal law enforcers will defer to state liberality by going after only those violators of the CSA whose behavior threatens public safety.
So here’s the landscape. A federal law, governing pretty much everyone, prohibits the possession and use of marijuana—even by medical patients with scripts from doctors. Some state laws defy this prohibition. DoJ has declared that, for now, it will look the other way from well-behaved adult users in those states. And every jurisdiction has a counterpart to Model Rule 1.2(d), which says lawyers who “counsel a client to engage, or assist a client, in conduct the lawyer knows is criminal…” are subject to discipline.
Disturbing, I think, especially with respect to the medical variation. When a state adopts a medical exception to the ban, it declares that dispensing medical marijuana is henceforth a tolerated, legally regulated way to earn income. Entrepreneurs who take up this invitation need counsel. Not just interpretations of the dense regulations but guidance on compliance for businesses more generally: employee relations, rental leases, collection and payment of sales and excise taxes, payroll taxes and rules, incorporation vel non, zoning law, on and on. Rule 1.2(d) thwarts the rendering of advice on how to follow the law.
A comment to the Model Rule says that “determining the validity or interpretation of the statute or regulation may require a course of action involving disobedience of the statute,” but that exception can’t come to the rescue here. The Supreme Court has held that Congress may under the Commerce Clause prohibit home-growing of small amounts of medical marijuana by a patient whose physician testified that she needed this drug to stay alive. “The validity or operation” of the statute is clear. If Angel Raich of Gonzales v. Raich has no right to medical marijuana, then nobody in the United States has that right. And if medical marijuana is categorically banned by federal law, then lawyers violate Rule 1.2(d) when they advise individuals and businesses about the work of dispensing it. (They also forfeit, or at least imperil, the attorney-client privilege that would otherwise protect their communications.)
Regulators in Colorado (draft new rule here) and Washington have started to address the problem. Medical-marijuana jurisdictions—much larger in number than these two and growing—ought to think about it too. Or we can wait for Congress to amend the Controlled Substances Act. That’s fine if you’re not hurting.