There is no question that there continue to be rapid developments arising in the law resulting from the steady trend among states toward reevaluating the legality of marijuana use under their state’s law. Several states have made it outright legal for recreational use under their state law, while others have legalized only medicinal uses, and some states have simply moved toward decriminalization. Still, it seems a little early for there to be a specialty bar association specifically focused on marijuana law issues. The fact that all three of the founding lawyers of the National Cannabis Bar Association are from the same city likely confirms that their reach might exceed their grasp at this stage.
There are though serious legal issues involved for people and businesses that want to grow and produce, or sell and distribute, or even simply provide banking services to people or businesses who do any of these things involving this product.
From a legal ethics perspective, there are two issues that seem most ripe. The first is the purely selfish interest of lawyers in such states, should they be so inclined to use a product made legal in their state, to know if they can still get disciplined under their ethics rules for personal marijuana use because it remains illegal under federal law? Colorado, for example, has seen an effort by lawyers to lobby for changes to the ethics rules that would go as far as permitting a lawyer to use in compliance with state law without being at risk of discipline under RPC 8.4 for violating federal law.
The second matters to lawyers and their clients alike — what lawyers can, and cannot advise, their clients with respect to use, production, growing, distribution, sale and other verbs about a product that is legal in some states for all purposes, legal in some states for some purposes, and illegal under federal law in all states for all purposes. As this recent development in which the firing of a worker for using legal medical marijuana on personal time was upheld in Colorado bears out, some issues of how to advise clients may be quite easy at least for now — for example, advising an employer if they can fire someone for breaking federal law. Other issues of advice are much thornier because of the existence of rules patterned after a part of ABA Model Rule 1.2.
In Tennessee, for example, we have RPC 1.2(d) which does two things: First, it prohibits lawyers from “counsel[ling] a client to engage, or assist a client, in conduct that the lawyer knows or reasonably should know is criminal or fraudulent.” Second, it permits lawyers to “discuss the legal consequences of any proposed course of conduct with a client and [to] counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of the law.” Of course, our state legislature does not seem inclined to even consider decriminalizing this substance, much less making its use legal for any purpose so the average Tennessee lawyer may not have to wrestle with where the line is between the two parts of RPC 1.2(d) on this issue any time soon. (Though to be as fair as possible, Tennessee did make the use of cannabis oil legal for limited medical purposes earlier this year.) In Oregon, for example, they’ve already amended their version of RPC 1.2 to specify the ability of Oregon lawyers to advise clients on Oregon’s laws as to marijuana. A few other jurisdictions have added language into their Comment to elaborate specifically about this issue. For other jurisdictions, that still only have something patterned on Comment [9] of the ABA Model Rule 1.2, like we do in Tennessee, helpful insight exists in the explanation that a lawyer is permitted to give “an honest opinion about the actual consequences that appear likely to result from a client’s conduct,” and of the “critical distinction” that exists “between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.”