Connecticut’s legalization of medical marijuana has caused ethical concerns among lawyers who are interested in the business opportunities they might gain from potential growers and sellers, but reticent about providing professional services tied to the sale of a substance that is still considers illegal under federal law.
But now the state Judicial Branch has removed some of that uncertainty. On June 13, the Judges of the Superior Court amended the state’s Practice Book Rules to ensure lawyers they won’t be faced with ethics complaints or even disbarment if they represented licensed marijuana distributors, none of whom have actually started doing business yet.
The Connecticut Bar Association’s ethics committee recommended changing the Rules of Professional Conduct “ever so slightly” to ease that tension. After much discussion, including concerns raised by Chief Disciplinary Counsel Patricia King that lawyers charged with marijuana-related crimes might seek a safe harbor from grievances if the rule was made too broad, the rule change became the first of its kind in the nation.
As approved at the annual judges’ meeting, language in rules 1.2 and 8.4, which prohibit lawyers from being involved in illegal activity, were amended.
Under the amended rules, a lawyer still shall not counsel a client to engage in, or assist a client in conduct that the lawyer knows is criminal or fraudulent. But a lawyer may now “counsel or assist a client regarding conduct expressly permitted by Connecticut law, provided that the lawyer counsel s the client about the legal consequences, under other applicable law, of the clients’ proposed course of conduct.”
Under Connecticut’s new law allowing medical marijuana, in-state patients who are at least 18-years-old and suffer from any of 11 debilitating illnesses, including Parkinson’s disease and cancer, can be prescribed to use the drug, as long as their physician officially certifies the need of the drug for palliative purposes.
While patients can already register with the state to use medical marijuana, the product won’t become legally available until late this summer or in the fall. The Department of Consumer Protection has already granted licenses to four producers and six dispensaries.
Connecticut law firms, including Carmody Torrance Sendak & Hennessey, which represents clients in land use issues, including permitting for businesses like medical marijuana facilities, as well as attorneys facing ethics complaints, fielded calls from many lawyers who voiced concerns about the legal ramifications of being involved in the grow and dispensary operations.
“We got calls early in the process after the medical marijuana bill was signed by the Governor,” said Stephen Conover of the firms Stamford office said. “Several people called asking us about the ethical risks for attorneys to be involved in these business. We told them we needed something to give us some shelter.”
Conover, who watched the rules committee process closely, said the new rule will provide lawyers with some confidence that they will not face discipline or suspension, as long as they keep their client work limited to what is legal.
Conover said he was impressed that Connecticut was the first state to pass such a rule. A Connecticut Bar Association task force looked to the codes of conduct in several West Coast states, including Washington and California, where medical marijuana had been passed earlier. “But none of those state had done anything to provide a safe harbor for lawyers,” he said.
Connecticut’s rule change “puts the state in the vanguard there, which is somewhat unusual,” Conover said.
David Atkins, at attorney with Pullman & Comley who represents attorneys facing ethics complaints, agreed that it was unusual for Connecticut to take a lead role in revising its rules of conduct. Colorado and Nevada made changes to their rules this year, by adding language to their commentary sections. Connecticut, however, was the first to change the text of the rule itself.
“I can’t recall a prior occasion on which Connecticut was in the forefront of adopting a substantive revision to the Rules of Professional Conduct,” Atkins said.
His firm represents Advanced Grow Labs, which succeeded in winning a state issued license to operate a medical marijuana grow facility.
Like Conover, Atkins said his firm received several phone calls from throughout the state seeking guidance on whether the Rules of Professional Conduct prohibited them from representing businesses applying for medical marijuana licenses.
The rule change, he said, will save lawyers who represent grow and sale operations from ethics violations.
“Because cannabis cultivation and sale remain crimes under federal law, absent the safe harbor provision the Connecticut judges have now approved, I believe a Connecticut attorney advising a client seeking to operate a medical marijuana business would be exposed to a disciplinary charge for violating Rule 1.2 (d.).
Other practice book changes were approved, including one which allows lawyers to call themselves specialists in the practice of elder law. Another pair of rule changes were passed to immediately suspend attorneys who are found guilty of crimes involving honesty, and to enforce a minimum discipline of disbarment for a minimum of 12 years for any lawyer who is convicted of misappropriating funds.
“The new language is intended to make it clear that 12 years is the bottom of the range, not the top,” said King, the chief disciplinary counsel for the state.