Will attorney ethics rules hamper the implementation of Connecticut's medical marijuana initiative? There are early indications that could be the case.
The Connecticut Bar Association ethics committee has issued an informal opinion saying that lawyers can help businesses that want to cultivate marijuana for distribution to chronically ill patients navigate the regulatory process for obtaining a state license.
But the opinion stops short of saying that lawyers can provide ongoing legal support once the business is up and running, and at least one Connecticut lawyer who focuses on marijuana law said attorneys would subject themselves to federal prosecution should they provide such help.
After several unsuccessful efforts, last year the state legislature approved the use of marijuana as a pain reliever for people with cancer, AIDS, Parkinson's disease, cerebral palsy and a host of other illnesses. In passing the Connecticut Palliative Use of Marijuana Act, lawmakers allowed for the creation of a handful of businesses that cultivate the drug, which would be distributed at dispensaries by licensed pharmacists.
At the same time, the federal Controlled Substances Act prohibits cultivation, sale or distribution of marijuana. Constitutionally, federal law trumps state law. And the Rules of Professional Conduct state that "a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent…."
The CBA's Professional Ethics Committee recently took up the question of whether lawyers can represent companies interested in cultivating pot in Connecticut. The inquiry came from the chair of the health law practice of an unidentified law firm, said committee member James A. Trowbridge, a Quinnipiac University School of Law professor, who helped draft the ethics opinion.
The committee gave lawyers some starting points for doing their own research into criminal liability under federal law. Under Connecticut's medical marijuana law, a company must apply for a license to cultivate the drug. The law requires a non-refundable application fee of $25,000 and a bond of $2 million. Under the law, the state plans to license between four and 10 growers. "We think that engaging the state regulatory process in getting people licenses is one thing; that's not malum prohibitum or malum in se," said Trowbridge, using the Latin terms to describe acts that are wrong because they're against the law, and those that are just plain wrong.
However, he added, "To help an operating [marijuana] business then you're getting into the territory of federal criminal law, on which we do not opine."
In 2009, then-Deputy U.S. Attorney General David W. Ogden spread the word nationally that enforcement actions against seriously-ill patients or their caregivers for decriminalized medical marijuana use would be a low priority for the U.S. Justice Department. He said it wasn't an efficient use of federal resources to focus enforcement efforts on cancer patients who use marijuana as part of a treatment regimen.
However, in subsequent years, more states approved medical marijuana laws. The number stands at 17. Last June, another deputy attorney general, James Cole, issued a letter saying that the existence of state laws are no defense for those violating civil or criminal laws, such as the Controlled Substances Act.