Pubdate: Thu, 13 Mar 2014
Source: Las Vegas Review-Journal (NV)
Copyright: 2014 Las Vegas Review-Journal
Contact: http://www.reviewjournal.com/about/print/press/letterstoeditor.html
Website: http://www.lvrj.com/
Details: http://www.mapinc.org/media/233
Author: Tom Ragan

LAWYERS ASK FOR RULING ON MEDICAL MARIJUANA

Protection Sought for Advising Clients

The Nevada Supreme Court is being asked to protect lawyers who advise 
clients on medical marijuana issues.

The Nevada Bar Association on Tuesday asked justices to adopt a rule 
to shield attorneys from the losing their law licenses if they 
counsel somebody who wants to open a medical marijuana dispensary in 
violation of federal law.

Alan Lefebvre, president of the State Bar, said the 50-page petition 
was filed in Carson City.

If the Supreme Court rules in the Bar's favor soon, then Nevada could 
become the first state in the country where lawyers can represent 
medical marijuana clients without suffering the legal repercussions, he said.

The states of Colorado and Washington have filed similar petitions 
with their state supreme courts, but those courts have not yet heard 
the petitions, Lefebvre said.

"Lawyers these days are caught between the devil and the deep blue 
sea on this subject," Lefebvre said. "But if the state Supreme Court 
rules in our favor, then at least it will give our attorneys the 
opportunity to provide advice on a state-created statute that runs 
contrary to federal law."

Last week, the State Bar's 15-member governing board voted to amend 
its rules of professional conduct and allow lawyers to dispatch legal 
advice on medical marijuana. It did so after the Bar's ethics hotline 
received several inquiries from attorneys who were worried about 
losing their licenses because the use of medical pot and its 
cultivation are both still illegal under federal law, the petition said.

"There is a pressing need by local government and the public for 
legal assistance to implement Nevada law but an inability to respond 
ethically since such advice and assistance would constitute a federal 
crime," the petition said.

Under the state Bar's new amendment, a lawyer "shall not be in 
violation ... or subject to discipline for engaging in conduct, or 
for counseling or assisting a client to engage in conduct, that, by 
virtue of a specific provision of Nevada state law, is permitted," 
the petition said.

On April 1, the state is expected to finalize rules and regulations 
that will make it legal for 66 medical marijuana dispensaries to 
operate in Nevada, with as many as 40 of them in Clark County.

In October, however, Las Vegas City Attorney Brad Jerbic said he had 
reservations about doling out legal advice to the City Council as it 
tried to decide whether to allow 10 medical pot dispensaries to 
operate within the city proper. As a result, he recused himself from 
such duty in January, raising the ire of some pro-medical marijuana 
council members and setting the stage for the State Bar's amendment.

An Oct. 23 letter Jerbic wrote to Bar counsel David Clark was used as 
one of the exhibits presented to the Supreme Court. In it, Jerbic 
writes that he is seeking an opinion on the matter, saying that 
though federal authorities have all but said they did not plan to 
focus resources on medical marijuana enforcement, there is no doubt 
that the distribution of medical marijuana is still against the law, 
according to an Oct. 19, 2009, memorandum written by then-U.S. Deputy 
Attorney General David W. Ogden.

"This guidance regarding resource allocation does not 'legalize' 
marijuana or provide a legal defense to a violation of federal law, 
nor is it intended to create any privileges, benefits, or rights, 
substantive or procedural, enforceable by any individual, party or 
witness in any administrative, civil or criminal matter," Ogden wrote.

Jerbic posed one question to the Bar: "My question is whether and how 
a public attorney might act in regard to clients whose intention may 
be to engage in conduct which is permitted by state law and which 
might not, currently, be prosecuted under federal law, but which 
nonetheless is a federal crime."

Under the universal rules of professional conduct, a lawyer shall not 
counsel a client to break the law.

Lefebvre said the State Bar's amendment will assure attorneys that 
they will never lose their license in the state, but it will never 
guarantee them immunity from the federal government.

"They could still be prosecuted. But the point of our petition and 
the state Supreme Court's pending ruling is that the lawyers will not 
be subject to discipline by the State Bar. The State Bar controls 
their licenses and has jurisdiction."

Lefebvre said the Supreme Court is expected to give the petition 
priority and hold a public hearing before voting on it.

"Anybody affected will have the opportunity to speak," he said, 
adding that the Supreme Court faces an important decision because it 
will be making an exception to a uniform rule, namely that lawyers 
cannot, or should not, counsel their clients where conduct in illegal 
activities is involved.
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