We posted here in July about the legal ethics aspects of representing clients involved in the marijuana industry.
Now comes an ethics ruling from North Dakota about a lawyer’s own use of medical marijuana. The lawyer, living in North Dakota and licensed there, has a medical condition that qualifies the lawyer for medical marijuana treatment under Minnesota law. North Dakota has no medical marijuana law. The lawyer asked the ethics committee whether the lawyer could move to Minnesota and obtain marijuana treatment there while continuing to have a North Dakota law license.
“No go” in North Dakota
In Opinion 14-02, the ethics committee said “No,” advising that the lawyer would be violating the state’s Rule 8.4. The rule provides that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects[.]”
Because using marijuana for any purpose, even a medical one, is a crime under federal law, the ethics committee advised that if the lawyer “purchased, possessed or ingested marijuana in Minnesota, the attorney would be violating federal law each and every time [the lawyer] did so.” See 21 U.S.C. § 812(a) (listing marijuana as Schedule I controlled substance); U.S. v. Oakland Cannabis Buyers’ Coop. (federal Controlled Substances Act has no medical necessity exception for marijuana). That conduct would signify that the lawyer was engaging in a pattern of repeated offenses “that indicates indifference to legal obligations” and that would constitute a violation of Rule 8.4.
The North Dakota ethics committee also pointed to the supremacy of federal law, citing the state supreme court’s recent rejection of two criminal defendants’ claims that Washington medical marijuana prescriptions provided a defense to controlled substance crimes. See State v. Kuruc state law that conflicts with federal law is without effect; ruling otherwise would mean that North Dakota would have to “recognize out-of-state marijuana prescriptions even though the same exact prescription cannot be made legal for its own citizens.”).
Colorado: lawyers can ethically use
North Dakota is just the second state to consider a lawyer’s own personal use of marijuana and whether it violates ethics rules. Two years ago, Colorado Ethics Opinion 124 held that a lawyer’s own use of medical marijuana, as legalized under state statute there, “does not necessarily violate [Rule] 8.4(b),” even though the conduct “may constitute a federal crime.”
In contrast to North Dakota, the Colorado ethics committee saw no “nexus” between the lawyer’s use of medical marijuana and the lawyer’s honesty, trustworthiness or “fitness as a lawyer in other respects” within the meaning of the state’s version of Rule 8.4, as long as the lawyer was complying with Colorado law. And last year, after Colorado decriminalized recreational marijuana use, the state ethics committee issued an addendum to Opinion 124, extending the reasoning to cover a lawyer’s recreational use of the drug.
Colorado judges are another story
But illustrating how the marijuana issue can tie regulators up in knots, Colorado’s Judicial Ethics Advisory Board concluded earlier this year that a Colorado judge cannot use marijuana for either medicinal or recreational purposes without running afoul of Rule 1.1 of the Colorado Code of Judicial Conduct. The rule provides that a judge must comply with the law, and that violating a criminal law constitutes such a violation, “unless minor.” Marijuana use of any sort is not a minor violation, the judicial board held, because it is a federal crime.
As we advised in July, the ethics law on the marijuana issue seems to be in a state of flux across the board. You are well-advised to follow developments in your own jurisdiction carefully, as well as keeping up to date on developments in the federal law.