“Lost in the Weeds of Pot Law: The Role of Legal Ethics in the Movement to Legalize Marijuana”

The title of this post is the title of this notable law review article by Helia Garrido Hull recently posted to SSRN.  Here is the abstract:

Every day attorneys face ethical dilemmas in trying to meet client needs while complying with professional rules of conduct.  Perhaps nowhere is the risk of violating ethics rules more apparent than in states that have diverged from federal drug policy on marijuana.  Attorneys currently engaged in marijuana-related counseling may violate federal law even where their actions are otherwise legal under state law. Changes in public opinion regarding the legality of marijuana that are driving some states to legalize or decriminalize certain marijuana-related activities provide no basis for attorneys to breach the covenant they have made with the public to uphold the rule of law.

This article argues that attorneys should refrain from counseling clients on the use, possession, and distribution of marijuana until doing so does not violate federal law. Attorneys who favor marijuana legalization should utilize their specialized training and advocacy skills to change the existing law.  Current state action to relax ethics standards applicable to marijuana related activities to insulate attorneys from ethics violations could produce the anomalous result of having an attorney criminally prosecuted under federal law for an action that does not violate state ethics rules.  Such a result creates internal inconsistency within the state, confuses the public, and could lead to questions regarding the integrity of the profession.

Part I of this article will provide a brief overview of the historical role of marijuana use in America and the basis for its subsequent ban.  Part II will address the emergence of state action to legalize marijuana for medical and recreational use and examines the federal response.  Then, Parts III and IV will examine the American Bar Association (ABA) model rules and select, state-specific attorney ethics rules applicable to counseling clients on marijuana-related issues and will argue that an attorney’s ethical obligations to the profession militate against counseling clients in this area except under certain narrowly defined circumstances.  Part V of the article will provide recommendations for competing interests of adhering to the rule of law with those proponents that want to legalize marijuana along with any economic benefits of its legalization.