With adult use of marijuana becoming legal under California law, more lawyers may be thinking of getting involved in representing clients in the marijuana business. I recently attended an ABA presentation, Up in Smoke? Jumping on the Marijauna Bandwagon Ethically which was highly informative. Although this is a big business, there are many reasons for lawyers to exercise caution before engaging in this practice area. Most importantly, marijuana continues to be illegal on the federal level. Attorney General Sessions recently rescinded former DOJ policies discouraging federal law enforcement.
Recently, a lawyer in California was sentenced to serve four years after representing and working with a marijuana business. Reportedly, as part of the plea, the lawyer agreed to forfeit his license to practice law. So, an attorney must be thoughtful about the scope of the representation when engaged in the representation of a client engaged in the marijuana business.
Two ethics opinions in California, from the Los Angeles County Bar Association and the San Francisco Bar Association, address this subject. Both include many significant caveats a California attorney should consider when making a decision whether to engage in the representation of marijuana related businesses. The Los Angeles ethics opinion indicates that the lawyer should limit the scope of the representation to advising the client on California law. As the San Francisco ethics opinion points out, by advising a client in the marijuana business related to California law, a lawyer could be accused of aiding and abetting the violation of federal law. Both ethics opinions may merit reconsideration in light of Sessions’ rescission of Obama-era DOJ policies.
Rule of Professional Conduct 3-210 prohibits a lawyer from advising the violation of any law, including federal law making marijuana a controlled substance. A proposed change to this rule to allow California lawyers to advise marijuana businesses was not moved forward to the California Supreme court, so it is not likely that California will follow the path of other states that have modified ethics rules.
As many California attorneys are aware, now is the time for completion of our MCLE requirements as we are turning in our State Bar dues and certifying our MCLE compliance. Many are also aware that the State Bar is auditing attorneys to confirm compliance. One of those audited was the subject of a recent opinion from the Review Department of the State Bar Court, which issued a public reproval of the attorney involved for negligently misrepresenting her MCLE compliance. The unpublished opinion indicates that the attorney involved reported she had fully complied when in fact she had not taken any courses during the relevant reporting period. Charged with committing an act of moral turpitude, the attorney indicated that she had mistakenly recalled that she had completed the courses, but did not check and did not maintain any records. The attorney accepted responsibility for her mistake and revised the way she tracks her MCLE hours. What is the appropriate discipline in such a situation, particularly where the lawyer has a long unblemished legal career? The positions of the players involved in this decision reflect conflicting views.
After the hearing judge issued a recommendation of stayed suspension and probation, the Office of Chief Trial Counsel appealed seeking a 30 day actual suspension. On review the court determined that a reproval sufficed given that the attorney posed no threat to the public and taking all other relevant factors into consideration. The majority did find that the attorney’s failure to report her MCLE compliance accurately was an act of moral turpitude by gross negligence, although without intentional misrepresentation. The dissent disagreed that the attorney’s gross negligence, in the absence of any misrepresentation, constituted an act of moral turpitude. The dissent would have dismissed the matter stating, “To turn this matter into a discipline case, and worse yet, a case of moral turpitude, is a disservice to the attorney discipline system.”
The opinion reminds California lawyers that it is our responsibility to complete our required MCLE courses, and to maintain records of our MCLE compliance. You are invited to take the free MCLE course on Legal Ethics and Technology at Buckner Legal Education, here.