With adult use of marijuana becoming legal under California law, more lawyers may be thinking of getting involved in representing clients in the marijuana business. I recently attended an ABA presentation, Up in Smoke? Jumping on the Marijuana Bandwagon Ethically which was highly informative. Although this is a big business, there are many reasons for lawyers to exercise caution before engaging in this practice area. Most importantly, marijuana continues to be illegal on the federal level. Attorney General Sessions recently rescinded former DOJ policies discouraging federal law enforcement.
Recently, a lawyer in California was sentenced to serve four years after representing and working with a marijuana business. Reportedly, as part of the plea, the lawyer agreed to forfeit his license to practice law. So, an attorney must be thoughtful about the scope of the representation when engaged in the representation of a client engaged in the marijuana business.
Two ethics opinions in California, from the Los Angeles County Bar Association and the San Francisco Bar Association, address this subject. Both include many significant caveats a California attorney should consider when making a decision whether to engage in the representation of marijuana related businesses. The Los Angeles ethics opinion indicates that the lawyer should limit the scope of the representation to advising the client on California law. As the San Francisco ethics opinion points out, by advising a client in the marijuana business related to California law, a lawyer could be accused of aiding and abetting the violation of federal law. Both ethics opinions may merit reconsideration in light of Sessions’ rescission of Obama-era DOJ policies.
Rule of Professional Conduct 3-210 prohibits a lawyer from advising the violation of any law, including federal law making marijuana a controlled substance. A proposed change to this rule to allow California lawyers to advise marijuana businesses was not moved forward to the California Supreme court, so it is not likely that California will follow the path of other states that have modified ethics rules.
About Carole J. Buckner
Carole J. Buckner is a Partner and General Counsel with Procopio in San Diego, California. She is an AV Peer Review Rated sole practitioner admitted to the California State Bar in 1984. She holds a BA from the University of California at Berkeley (1980) and a JD from the University of California, Hastings College of the Law in San Francisco (1984). She is available for consulting and legal advice in the field of legal ethics and issues involving professional responsibility, and the law of lawyering.
