Can a California Attorney Advise Clients Regarding Medical Marijuana?

The Bar Association of San Francisco in June issued Opinion 2015-1, asserting that a California attorney may ethically represent a California client regarding a medical marijuana dispensary and related matters, providing that the attorney advises the client of potential liability under federal law and is aware of the attorney’s own risks under federal law.

The Opinion illustrates a hypothetical in which an attorney receives a client inquiry for advice related to opening a medical marijuana dispensary, including negotiating a lease, getting financing, permits, licenses, and similar issues. This hypothetical details what the Opinion asserts is a unique ethical quandary for California attorneys: advising a client related to a matter that is permitted under state law, but illegal under federal law; and advising a client in a context where the advice itself could be considering aiding and abetting violation of federal law.

By way of background, the Opinion notes that growing, selling, or possessing marijuana is still illegal under federal law, as is aiding and abetting a violation of federal marijuana laws. Although the federal government has stated that enforcement of the federal marijuana laws is not a priority as to individuals who are in compliance with state medical-marijuana laws, the violation is still a crime and may be subject to attorney disciplinary enforcement. The Opinion also notes that federal law here does not preempt state law, because California law does not make legal what federal law prohibits. Rather, California law now provides that the possession, sale, and cultivation of medial marijuana will not be prosecuted by the state, if a doctor has recommended its use for a serious medical condition.

The Opinion asserts that clients require advice on how properly to comply with state law regarding medical marijuana, putting aside the issue of any potential federal law violations, and concludes that attorneys should not be prohibited from providing that advice, within bounds:

“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 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.”

What about Business and Professions Code section 6068(a), which provides that one of the duties of an attorney is to support the laws of the United States? The Opinion draws a distinction between counseling compliance with state and local laws as long as the attorney does not “counsel conduct that may invite prosecution for violation of federal laws.”

Similarly, the Opinion asserts that California Rule of Professional Conduct 3-210, which provides that an attorney “shall not advise the violation of any law. . .unless the member believes in good faith that such law. . .is invalid” should not be interpreted to prohibit an attorney from representing a client regarding medical marijuana, since “assisting a client who wants to comply with state law is not the same as advising the client to violate federal laws.”

The Opinion also asserts that an attorney’s counsel related to medical marijuana should not be considered an act of moral turpitude that would constitute a violation of Business and Professions Code section 6106. The Opinion asserts that providing legal advice to clients regarding compliance with state law is a public service of the type suggested by Canon 2 of the American Bar Association Code of Professional Responsibility, because it makes legal counsel available to those who need it.

The Opinion candidly details that this issue has been resolved differently elsewhere, in part because an attorney’s duties under the California Rules of Professional Conduct are different than the requirements of ABA Model Rule 1.2(d). Rule 3-210 does not expressly prohibit assisting a client in conduct that the lawyer knows is permissible under state law but criminal under federal law. Model Rule 1.2(d), by contrast, contains a broader prohibition:

“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.”

If a California attorney represents a client regarding medical marijuana, the Opinion outlines proposed parameters for the representation:

• counsel the client not to violate state laws;
• only assist the client in conduct that conforms with state law;
• warn the client about the risks of prosecution under federal laws;
• advise the client how to minimize the risk of prosecution under federal laws;
• warn the client that the attorney may withdraw under Rule 3-700(C)(1)(b) if the client violates state law or invites federal prosecution; and
• warn the client that confidentiality may be limited, because of the Evidence Code section 956 “crime fraud” exception to the confidentiality provisions of Business and Professions Code section 6068(e)(1).

The Opinion recommends that the BASF urge the State Bar and Supreme Court to adopt legislation to protect lawyers from discipline, and to broaden the attorney-client privilege, in these circumstances.