By: Mike Vitiello
In my previous post, I mentioned that many areas of marijuana law are complex and that I would discuss legal ethical issues that marijuana attorneys face. It is critical to remember that every use of marijuana violates federal law, even in states like California, where the state allows medical or recreational use. That can create problems for attorneys who work with their clients who are in the marijuana business.
While ethical rules governing attorneys vary from state to state, as a general matter, attorneys cannot engage in illegal activity. Ethical rules also prohibit attorneys from advising clients how to violate the law. This presents a dilemma for attorneys representing marijuana clients in states where marijuana is legal.
Previously, bar associations in some states indicated that an attorney advising a client on setting up a marijuana business would violate ethical rules because the business would violate federal law. More recently, however, the trend is away from that position. During the recently completed legislative session, the Legislature adopted AB 1159 that addresses some of the important questions in this area.
California is now like other states where attorneys can work with clients in the marijuana business as long as they advise them that the conduct violates federal law.
Another area that was addressed by AB 1159 was: what if an attorney uses medical or even recreational marijuana? Does that reflect badly on his or her moral character? Not anymore. The new law provides that use of marijuana is not evidence of a lack of good moral character. However, being under the influence of marijuana at work or in court might still be an ethical violation.
The area of the law that pertains to statements made by an attorney to the client or by the client to the attorney remains unclear, even after the passage of AB 1159, but you will have to listen to my podcast to hear how that area of the law is still unclear.