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How to advise clients on legal-marijuana issues? Some bar associations mull ethics rule changes

Posted Feb 12, 2014 1:15 PM CDT
By Martha Neil

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Marijuana remains an illegal drug under federal law. But a growing number of states have moved to allow medical marijuana, or even recreational pot use and sales, some lawyers feel they are between a rock and a hard place.

State and local government entities, as well as individual and corporate clients considering whether to get involved with marijuana-related businesses, need legal advice. But could attorneys who counsel them be breaking legal ethics rules by encouraging others to violate federal law?

That concern has prompted multiple requests for ethics opinions and suggestions that attorney disciplinary rules should be amended, reports the Las Vegas Review-Journal.

In Nevada, State Bar President Alan Lefebvre says the board of governors is working on a rule change that is on a fast track and should be before the state supreme court for approval within a few months.

Currently, a relevant portion of Rule 1.2 of the Nevada Rules of Professional Conduct, which tracks the ABA model rule, states: “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

In Washington state, the newspaper notes, an amended attorney ethics rule is already in place in King County, where Seattle is located.

The comparable rule there now reads: “A lawyer shall not be in violation of these rules or subject to discipline for engaging in conduct, or for counseling or assisting a client to engage in conduct, that by virtue of a specific provision of Washington state law and implementing regulations is either (a) permitted, or (b) within an affirmative defense to prosecution under state criminal law, solely because that same conduct, standing alone, may violate federal law.”

Related coverage:

ABA Journal: "ADA Does Not Protect Medical Marijuana Dispensaries, 9th Circuit Says"

ABAJournal.com: "Cities and counties can ban marijuana use that is legal under state law, AG says"

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