May a Lawyer Assist a Client in Conduct That Violates Federal Law But Not State Law?

marijuana-leaf-jointYes, according to a June 15, 2015 ethics advisory opinion from the San Francisco Bar Association. See S.F. Bar Assoc. Ethics Op. 2015-1 (Jun. 2015). Federal law prohibits the sale and possession of marijuana. California law, however, permits the sale and possession of marijuana for medicinal purposes. May a lawyer “ethically represent a client in respect to a medical marijuana enterprise” that violates federal, but not state law? Said the committee:

We do not believe that the State Bar Act or California Rules of Professional Conduct should be used to discipline lawyers whose clients seek advice on how to comply with state or local laws when the client’s proposed conduct may violate the [federal] Controlled Substance Act. Provided that the client limits his or her activities to those that comply with state law, and provided that the lawyer counsels against otherwise violating the Controlled Substances Act, a lawyer should be permitted to advise and represent a client regarding matters related to medical marijuana under state law.

This is dangerous advice. The professional conduct standards of most jurisdictions—including Louisiana—provide that 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.” See, e.g.Louisiana Rule 1.2(d).

Everyone “knows” that it is a crime under federal law to sell marijuana. Furthermore, there is no “good faith” argument that can be made as to the “validity, scope, meaning or application” of that federal law to a marijuana dispensary. Therefore, the plain language of Rule 1.2(d) would clearly prohibit a lawyer from advising such an enterprise. Irrespective of whether this is good policy, it is a fairly straightforward application of an unambiguous black-letter standard.

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