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High court: Lawyers can’t help clients get medical marijuana

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The Arizona Supreme Court wont repeal rules that threaten lawyers with disbarment if they help clients get, sell or use marijuana legally under a 2010 voter-approved law.

Without comment, the high court has rejected a petition that would legally let lawyers help clients deal with the Arizona law that allows certain individuals to possess and certain businesses to sell and grow marijuana. The justices gave no reason for their decision.

In doing so, the court is affirming existing rules that forbid attorneys from assisting clients in conduct that the lawyer knows is criminal.

That is significant: While the Arizona Medical Marijuana Act makes marijuana legal for some, the sale, possession and use of the drug remain a felony for all under federal law.

More to the point, attorney Patricia Sallen, who urged the high court to alter the rules, said it leaves attorneys at risk over what they can — and cannot — tell clients who want to get into the marijuana business. That is important because an attorney can be reprimanded, suspended or even disbarred for violating the rules.

The courts refusal has potentially deeper implications.

It comes as voters are deciding whether to expand the state law to allow any adult to possess and use the drug. And if that is approved, it means a whole new set of Arizona laws on marijuana that attorneys may be ethically unable to help their clients navigate.

Whether that will pass remains an open question. Two new polls suggest a close race, with one putting approval at 40 percent and one at 50 percent.

The problem the rule creates for attorneys does not bother Maricopa County Attorney Bill Montgomery, who actively opposed what Sallen was trying to do.

He said no matter what Arizona voters have already decided or may decide in November, attorneys have taken an oath to defend both state and federal laws. And that, said Montgomery, means they cannot counsel anyone on activities that remain federal crimes.

Nor was Montgomery concerned that the ethical rules could result in some individuals and businesses being without legal help as they try to navigate state laws legalizing marijuana.

Youre not entitled to (legal) help to break federal law, he said.

Thats called a conspiracy, Montgomery continued. And that makes the attorney an accomplice.

The fact the Supreme Court was even looking at the issue came as a surprise to Ryan Hurley, who has been active in representing dispensary owners and others since the 2010 law was approved. But Hurley said he is hoping the justices refusal to provide some cover for attorneys like him is not an indication that he could end up in trouble with the court.

Hurley said, if nothing else, there is a 2011 opinion by the State Bar of Arizona.

That opinion says lawyers may advise clients about complying with the Arizona Medical Marijuana Act. That includes helping them establish business entities and representing them before government agencies.

That opinion does require attorneys to advise clients about the potential federal law implications and consequences.

But in her petition to the high court, Sallen told the justices that opinion is just that, an opinion, and something that may not be enough to assure attorneys they can help their clients on issues related to medical marijuana. Specifically, Sallen said the opinion does not trump the actual written rule — the one the court refused to alter — and does not necessarily protect a lawyer from being disciplined.

Strictly applied, this means that by advising and helping clients conduct business under Arizonas medical marijuana law, lawyers would be engaging in criminal conduct under federal law, Sallen wrote to the court, violating the written rules by which attorneys must act.

So she proposed amending the rules to say that attorneys can assist a client regarding conduct expressly permitted by Arizona law as long as the lawyer tells the client about the legal consequences under federal law.

Montgomery said thats not an answer.

It is inconsistent with an attorneys job to follow the law, period, he said, calling it disingenuous for attorneys to acknowledge the violation of federal law and then advise clients how to break it.

It speaks to a disregard for the law that does more to harm lawyers as a profession than just about anything else, Montgomery said. It makes us all just a bunch of hypocrites (to say) Follow the law unless I tell you you cant.

But what Sallen asked the high court to do has precedent.

In Colorado, where both medical and recreational marijuana is legal, there was an annotation to that states Rules of Professional Conduct to say that a lawyer may counsel a client not only about what the law legalizing pot says but may assist a client in conduct that the lawyer reasonably believes is permitted by these constitutional provisions and the statutes.

She cited similar provisions enacted in Washington, Oregon and Alaska.

The polls show some level of interest in expanding the existing medical marijuana law to allow all adults to purchase and use the drug.

One conducted by the Morrison Institute with live phone calls to about 800 registered voters found 50 percent support for Proposition 205, with about 40 percent against and the balance saying they were not sure. The margin of error is 3.3 percent.

A separate survey of 728 likely voters by OH Predictive Insights using both live callers and automated responses found a mirror image, with 40 percent saying they support the measure and 51 percent opposed. It has a margin of error of 3.6 percent.

2 comments

  1. Public officials either take their oath to the U.S. Constitution seriously or they do not.

    Since the federal government has no Constitutional authority to ban the possession or cultivation of naturally occurring plants nor to specify what one can or cannot ingest, the federal law Mr. Montgomery holds so dear is, itself, null and void from inception. See Marbury v Madison, 5 US (2 Cranch) 137, 174, 176 (1803), “All laws which are repugnant to the Constitution are null and void.” And McCulloch v. Maryland, 17 U.S. 316 (1819), “This government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent, to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge; that principle is now universally admitted.”

    Like it or not, we the people have never delegated authority to the federal government to conduct the so-called, “war on drugs.”

  2. Good argument, but the Supreme Court like all courts is a political animal as well as a juridical body.

    When it becomes inconvenient or impractical for the Justices to rule without a political foundation, the AZ Supreme Court will reverse its position — no doubt, without comment.

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