More than thirty jurisdictions in the United States permit some type of marijuana sale and use. See Governing.com List of State Marijuana Laws in 2018 (as of March 2018). But, much of what these state and local jurisdictions permit remains illegal under the federal Controlled Dangerous Substances Act (codififed in Title 21 of the United States Code).
That marijuana distribution remains a crime under federal law presents a problem to lawyers who would like to advise their clients as to marijuana sale and use. Both the ABA Model Rules of Professional Conduct and the Louisiana Rules of Professional Conduct in their respective rule 1.2(d) prohibit a lawyer from counseling a client to engage, or assisting a client, “in conduct that the lawyer knows is criminal.” See La. Rules of Prof’l Cond. R. 1.2(d). While the rule allows a lawyer to discuss the “legal consequences” of any proposed course of conduct and to make a “good faith effort to determine the validity, scope, meaning or application of the law,” id., it simply does not allow a lawyer to assist a drug-distribution operation by, for example, drafting contracts with vendors, transporters, suppliers, and the like.
Because of this problem, several jurisdictions have amended their lawyer-conduct standards to permit advice clients as to marijuana issues despite that the client will use the advice to engage conduct that is criminal under federal law. On Septemeber 26, 2018, Calfornia became the most recent to do so when the state’s highest court amended the comments to California Rule 1.2.1 (“Advising or Assisting the Violation of Law”). The new comment provides as follows:
Paragraph (b) permits a lawyer to advise a client regarding the validity, scope, and meaning of California laws that might conflict with federal or tribal law. In the event of such a conflict, the lawyer may assist a client in drafting or administering, or interpreting or complying with California laws, including statutes, regulations, orders, and other state or local provisions, even if the client’s actions might violate the conflicting federal or tribal law. If Califronia law conflicts with federal or tribal law, the lawyer must inform the client about related federal tribal law and policy and under certain circumstances may also be required to provide legal advice to the client regarding the conflict. (See rules 1.1 and 1.4.).
See Admin. Order 2018-09-26-01, Supreme Court of California (filed Ca. Sep. 26, 2018).
In May 2016, adopted legislation permitting the cultivation, distribution, and use of medical marijuana. LSU and Southern University are gearing up their grow houses and cultivation facilities. Will Louisiana lawyers be able to provide them with legal advice to further their efforts?
On November 2, 2016, the Louisiana State Bar Association Rule of Professional Conduct Committee debated the issue and declined to recommend an amendment to the Louisiana rules that would have permitted lawyers to give legal advice to LSU and Southern regarding marijuana cultivation and distribution.1 In so doing, the committee respected the basic federalism principle of supremacy embodied in Article VI § 2 of the United States Constitution. Indeed, if the State of Louisiana were to permit racial discrimination in the workplace in violation of federal civil rights laws, the rules would not allow a lawyer to advise a restaurant as to how to refuse to hire African-American waiters. Allowing advice regarding illicit marijuana cultivation and distribution would have been just as unacceptable in our federal system.
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