Will attorney ethics rules hamper the implementation of Connecticut’s medical marijuana initiative? There are early indications that could be the case.
The Connecticut Bar Association ethics committee has issued an informal opinion saying that lawyers can help businesses that want to cultivate marijuana for distribution to chronically ill patients navigate the regulatory process for obtaining a state license.
But the opinion stops short of saying that lawyers can provide ongoing legal support once the business is up and running, and at least one Connecticut lawyer who focuses on marijuana law said attorneys would subject themselves to federal prosecution should they provide such help.
After several unsuccessful efforts, last year the state legislature approved the use of marijuana as a pain reliever for people with cancer, AIDS, Parkinson’s disease, cerebral palsy and a host of other illnesses. In passing the Connecticut Palliative Use of Marijuana Act, lawmakers allowed for the creation of a handful of businesses that cultivate the drug, which would be distributed at dispensaries by licensed pharmacists.
At the same time, the federal Controlled Substances Act prohibits cultivation, sale or distribution of marijuana. Constitutionally, federal law trumps state law. And the Rules of Professional Conduct state that "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent…."
The CBA’s Professional Ethics Committee recently took up the question of whether lawyers can represent companies interested in cultivating pot in Connecticut. The inquiry came from the chair of the health law practice of an unidentified law firm, said committee member James A. Trowbridge, a Quinnipiac University School of Law professor, who helped draft the ethics opinion.
The committee gave lawyers some starting points for doing their own research into criminal liability under federal law. Under Connecticut’s medical marijuana law, a company must apply for a license to cultivate the drug. The law requires a non-refundable application fee of $25,000 and a bond of $2 million. Under the law, the state plans to license between four and 10 growers. "We think that engaging the state regulatory process in getting people licenses is one thing; that’s not malum prohibitum or malum in se," said Trowbridge, using the Latin terms to describe acts that are wrong because they’re against the law, and those that are just plain wrong.
However, he added, "To help an operating [marijuana] business — then you’re getting into the territory of federal criminal law, on which we do not opine."
In 2009, then-Deputy U.S. Attorney General David W. Ogden spread the word nationally that enforcement actions against seriously-ill patients or their caregivers for decriminalized medical marijuana use would be a low priority for the U.S. Justice Department. He said it wasn’t an efficient use of federal resources to focus enforcement efforts on cancer patients who use marijuana as part of a treatment regimen.
However, in subsequent years, more states approved medical marijuana laws. The number stands at 17. Last June, another deputy attorney general, James Cole, issued a letter saying that the existence of state laws are no defense for those violating civil or criminal laws, such as the Controlled Substances Act.
In his letter, — stated that large-scale "industrial cultivation centers" with tens of thousands of cannabis plants, generating millions of dollars in revenue, would be targeted by federal authorities. Major marijuana distribution remains a "significant crime that provides a significant source of revenue to large scale criminal enterprises, gangs and cartels," Cole wrote.
The stated policy authorizes prosecution of all "persons who are in the business of cultivating, selling, or distributing marijuana and those who knowingly facilitate such activities." The potential penalties for growing more than 100 plants are between 10 years and life imprisonment.
The Connecticut ethics opinion says that a lawyer counseling a client on the new state law should explain there is a conflict between state and federal statutes, "and that the conflict exists regardless of whether federal authorities in Connecticut are or are not actively enforcing the federal statutes."
At some point, according to the opinion, some cultivation businesses "may expect their lawyers to assist them by providing advice and services," and that can violate federal law.
The opinion also cites commentary in Rule 1.2(d) of the Rules of Professional conduct. "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."
Bloomfield lawyer Aaron Romano concentrates his practice on criminal defense law and advising medical marijuana patients. He is also on the national legal committee for the advocacy group NORML.
In his view, there is no legal or ethical way a lawyer can advise a client how to operate a marijuana "grow" or a dispensary without running afoul of federal law, under the Supremacy Clause of the U.S. Constitution.
The Supremacy Clause says, in essence, that any federal law trumps any state law.
On February 5, a bill was introduced in Congress called the Ending Marijuana Prohibition Act. Only that type of major federal change would make it legal or ethical for lawyers to assist in the creation of a marijuana producing or distributing enterprise, Romano said. In his view, even setting up a business entity for a marijuana enterprise is off-limits, he said.
"You can’t advise your client not to break the law, and then form a company to do just that," Romano said. "If a client has the funds to pay for the $25,000 license, and can put up a $2 million bond, I [would] advise them to put their money into something that is legal."
Romano said he could easily see federal authorities in Connecticut using "creative charging, where an attorney advisor could be considered to have conspired with or aided and abetted producers in violation of the Controlled Substances Act."
He said lawyers in California, which also has a medical marijuana law, have been arrested for their involvement in — and part ownership of — their clients’ businesses. "My advice to clients is, you can’t do this," Romano said. "And I don’t think attorneys can get involved in the business end at all, until there is a change in federal law."
Frederick Ury, of Westport’s Ury & Moskow, is a former CBA president who is currently a member of the American Bar Association’s Commission on Ethics 20/20, which is studying the future of the law and the legal profession.
Ury said he had not seen the CBA’s marijuana ethics opinion, but commented: "It’s still illegal as far as the feds go, and there are lots of implications for lawyers. I guess you could argue what Jim [Trowbridge] is saying, that it’s unethical because it’s still a federal violation."
Ury recently represented a Fairfield entrepreneur who was seeking zoning approvals for a Bridgeport factory that would be used for a marijuana growing facility. Bridgeport officials rejected the proposal and Ury says his client isn’t going to pursue the matter.
The state regulations for cultivation businesses, drafted by lawyers in the Department of Consumer Protection, reflect the fact that the state and federal laws are in opposition, Ury noted. "There are extremely high hurdles left and right," he said. "The regulations are too restrictive, with too much risk [for entrepreneurs] and not enough reward. I was very disappointed when I read them."
Does Ury believe it would be unethical for a lawyer to create a business entity for a marijuana producer? "I don’t see it as black and white as that," he said. "In my client’s case, I felt it made all the sense in the world for him to have legal counsel, and still do."•