Attorneys in Connecticut who use medical marijuana don’t have to worry about professional sanctions, according to a recent opinion by the Professional Ethics Committee for the Connecticut Bar Association. As long as the marijuana use is in accordance with state law, the opinion states, lawyers are in the clear.
In general, attorneys are ethically obligated to conform to the law even in their personal affairs. In the balkanized world of legal marijuana, however, the issue is muddled in the unsettled space between state and federal law, which still considers cannabis categorically prohibited.
Connecticut is one of 23 states that allow medical marijuana use, of which Colorado, Washington, Oregon and Alaska allow legal recreational use as well. A few of the states have addressed the question of lawyers smoking weed up front. A spokesperson for the Oregon Bar Association noted that while there have been no formal ethics opinions yet, there was an informal consensus that attorneys would be unlikely to face any ethics charges for marijuana use. In Colorado, the Office of Attorney Regulation Counsel has told lawyers they wouldn’t face any discipline for smoking pot either.
But not every state has been explicit in their ethical instructions. In California, for example, home of the nation’s first medical marijuana law dating all the way back to 1996, neither the state bar association nor two attorneys who specialize in legal ethics could recall any opinions regarding marijuana use by lawyers.
Even where lawyers are given the green light to smoke by their professional boards, they could still run into trouble. Attorneys facing federal charges could find themselves in ethical hot water if marijuana were somehow involved in the proceedings, regardless of state law. And there’s also the issue of the employer. While the state ethics committee may not take issue with lawyers getting high, employers can have their own drug policies that ban attorneys (and other employees) from indulging, even if medically indicated.
The general public may not have much at stake whether lawyers can use marijuana or not, but the question actually goes hand-in-hand with an issue of much broader importance — whether lawyers can advise growers, distributers and vendors, knowing that they are in violation of federal law. The same ethical questions that arise with smoking weed apply to interacting with the industry professionally.
Again, the verdict is still murky. An opinion provided by the Maine Board of Overseers of the Bar cautions lawyers that getting involved with medical marijuana is risky business. “The Rule which governs attorney conduct does not make a distinction between crimes which are enforced and those which are not,” the opinion states. “While attorneys may counsel or assist a client in making good faith efforts to determine the validity, scope, meaning or application of the law, the Rule forbids attorneys from counseling a client to engage in the business or to assist a client in doing so.”
Washington state is more bold, allowing that attorneys “may assist a client in conduct that the lawyer reasonably believes is permitted by [state marijuana law].”
As long as cannabis remains a Schedule I controlled substance, defined by the Drug Enforcement Administration as a drug of abuse with no medical value, states are left glancing over their shoulders at the federal government as they attempt to normalize business and personal interactions related to marijuana.
“All the ethical codes I know say that a lawyer cannot assist someone in violating the law, and the lawyer him or herself cannot violate the law,” says Dwight Merriam, former chair of the American Bar Association’s section of state and local government law and co-editor of a forthcoming book on medical cannabis. That being said, Merriam notes, attorneys are moving forward cautiously to at least advise clients on the business aspects of marijuana commerce.
“I don’t know of any lawyers who have been disciplined for recreational use or for advising clients,” he says. “This whole landscape is changing so rapidly.”
Changes at the federal level could soon relieve the ambiguity. Last year the DEA announced that it would consider removing cannabis from Schedule I, and U.S. Surgeon General Vivek Murthy acknowledged recently that marijuana does have medical benefits. “We have some preliminary data showing that for certain medical conditions and symptoms that marijuana can be helpful,” Murphy said to CBS News. “I think we have to use that data to drive policy making and I’m very interested to see where that data takes us.”
“Does the Surgeon General’s expression that cannabis does have some medical use foretell [the Obama] administration’s plan to make medical cannabis a Schedule II drug, which will then entirely change the landscape from the present state-by-state system?” Merriam says. “We haven’t heard the last word by a long ways in terms of the issues for lawyers.”