In May 2016, Louisiana became the twenty-fifth state to adopt 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?
The problem is this: marijuana distribution remains a crime under federal law. Louisiana Rule of Professional Conduct 1.2(d) prohibits 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.
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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