Pubdate: Sun, 28 Nov 2010
Source: East Valley Tribune (AZ)
Copyright: 2010 East Valley Tribune.
Author: Howard Fischer, Capitol Media Services
Bookmark: (Cannabis - Medicinal - U.S.)
Bookmark: (Proposition 203)


Patients, doctors and dispensaries seeking legal help navigating the 
state's new medical marijuana law could find themselves up the creek 
without a lawyer. The ethics counsel for the State Bar of Arizona 
said it is a violation of the rules laid out by the Arizona Supreme 
Court for attorneys to help clients break the law. Patricia Sallen 
acknowledged that the new medical marijuana law permits individuals 
with a doctor's recommendation to obtain up to 2 1/2 ounces of 
marijuana every two weeks. And it also sets up procedures for the 
state to license nonprofit corporations to sell the drug.

But she pointed out it remains illegal under federal law to sell or 
possess marijuana.

Sallen said that could keep attorneys from helping Arizona 
corporations set up a dispensary. And it also could mean no help 
going to court for any company that believes it was unfairly or 
unlawfully denied a dispensary license -- or even for an individual 
who claims to be entitled to a medical marijuana card.

Her preliminary opinion is not based on conjecture of what the 
Arizona ethics rules require.

She noted the Maine Board of Overseers of the Bar, that state's 
counterpart to her organization, issued a formal opinion earlier this 
year after Maine adopted its own medical marijuana law.

That opinion specifically says that attorneys, while allowed to 
provide advice on the law, are not permitted to help their clients 
break it. The fact that the federal government is not enforcing its 
own anti-drug laws against those complying with state medical 
marijuana statutes, the Maine opinion says, is irrelevant.

And the ethical rules that regulate Maine attorneys are virtually 
identical to the ones by which Arizona lawyers must live. Sallen said 
a formal opinion for Arizona lawyers will be coming from her office 
on the issue, though she could not say when. She acknowledged, 
though, an opinion warning attorneys to avoid these cases could leave 
Arizonans without legal help they need.

Some of the first questions may come from those needing assistance to 
incorporate a firm to set up a marijuana dispensary. But the need for 
an attorney may become more acute as some of these companies are 
denied one of the limited number of state licenses to operate a 
dispensary. Under the terms of Proposition 203, the state can issue 
permits equal to 10 percent of the number of pharmacies in Arizona. 
State Health Director Will Humble said that comes out now to 125.

Humble said he is likely to award the licenses based on an 
examination of each applicant's qualifications. That, in turn, opens 
the door for appeals -- and lawsuits -- by anyone not on the final list.

"A lawyer may discuss the legal consequences of any proposed course 
of conduct," Sallen said. "Otherwise, how could you find out what is 
legal and illegal to do?" But Sallen said the rules also make it 
clear that attorneys cannot counsel a client to "engage in conduct a 
lawyer knows is criminal or fraudulent." And what of someone who 
needs an attorney to go to court?

"That's the question we're looking at," she said. "At what point do 
you cross the line?" Sallen said the formal opinion from Maine 
doesn't provide a much guidance of what attorneys may and may not do. 
In fact, the Maine board specifically dodged the issue. "Where the 
line is drawn between permitted and forbidden activities needs to be 
evaluated on a case by case basis," that formal opinion reads. "We 
cannot determine which specific actions would run afoul of the 
ethical rules," it continues. "We can, however, state that 
participation in this endeavor by an attorney involves a significant 
degree of risk which needs to be carefully evaluated."

What attorneys do in California, which has one of the oldest medical 
marijuana laws in the nation, is of little guidance. That state's 
ethics rules differ from Arizona and, in fact, from most of the rest 
of the nation.

The rules in Colorado, however, where a medical marijuana law was 
approved in 2000, are identical to Arizona.

There has been no formal opinion from that state's bar on the issue. 
But a article written earlier this year for a Colorado Bar 
Association newsletter on the issue of helping companies set up 
marijuana distribution businesses, which are legal under that state's 
laws, provides no more guidance on the issue than the Maine opinion.

"Lawyers who assist medical marijuana dispensaries may well violate 
(the ethical rule) and should not delude themselves by indulging fine 
distinctions over the degree of their assistance or knowledge of a 
client's criminal conduct," wrote attorney Alec Rothrock. "The risk 
of violation is high and cannot be eliminated."

But Rothrock said that, at least in Colorado, the chances of the 
state bar investigating an attorney -- and specifically, imposing a 
significant penalty -- is probably minimal. "The real issue that 
Colorado lawyers should ponder is not disciplinary prosecution but 
ethical purity," he wrote. 
- ---
MAP posted-by: Richard Lake