Pubdate: Fri, 12 Aug 2016
Source: New Mexican, The (Santa Fe, NM)
Copyright: 2016 The Santa Fe New Mexican
Author: Andrew Oxford


Some Attorneys Given Pause by 'Gray Area' Between State, Federal 
Cannabis Policies

Nine years after the New Mexico Legislature legalized marijuana for 
medicinal purposes, the state's lawyers are feeling uneasy about 
clients involved in the cannabis industry.

The New Mexico State Bar Association, citing federal drug laws and 
rules of professional conduct prohibiting lawyers from assisting 
clients in committing a crime, is cautioning attorneys on 
representing medical cannabis growers and dispensaries.

An opinion from the association's Ethics Advisory Committee published 
this week comes as businesses and regulatory groups navigate the 
legal gray area surrounding the licensed growing and selling of a 
product the federal government still classifies as a Schedule I narcotic.

Concerns about federal policies have complicated the work of 
state-approved growers and distributors in the more than two dozen 
states around the country that have medical marijuana programs. Banks 
have been leery of handling money from cannabis producers and 
dispensaries for fear of running afoul of U.S. government regulators.

Similarly, some lawyers have been hesitant to represent businesses 
dealing in marijuana.

The Ethics Advisory Committee took up the issue when a lawyer 
anonymously asked whether a New Mexico attorney could comply with the 
state's codes of conduct while representing nonprofit producers, 
couriers and manufacturers licensed under the New Mexico Department 
of Health's medical cannabis program.

The committee seemed to say both both yes and no.

"At one end of the spectrum, the committee is in general agreement 
that negotiating contracts for the purchase of cannabis would be 
directly assisting the client to engage in a criminal activity," the 
opinion said. "At the other end of the spectrum, some committee 
members opined that forming a general alternative medical business, 
which could possibly include the prescribing and distributing of 
medical cannabis would not be such assistance."

Attorneys may represent nonprofit organizations involved in producing 
or distributing marijuana, the committee concluded, but cautioned 
lawyers "may not counsel or 'assist' a client to commit a crime."

"I think it's still a gray area," said Joe Conte, executive director 
of New Mexico Bar Association.

Lawyers' groups in several other states have taken up the same 
question but reached conflicting conclusions.

The Illinois State Bar Association, for example, determined it would 
be reasonable for lawyers to provide businesses in the marijuana 
industry the same services they provide other clients.

The State Bar of Arizona justified lawyers representing clients in 
the marijuana industry by noting the federal government has provided 
something of a safe harbor from prosecution for growers and 
dispensaries licensed by state authorities. Arizona's bar association 
also noted courts have not ruled on whether the state's marijuana 
laws are pre-empted by federal regulations.

But the New Mexico State Bar Association's Ethics Advisory Committee 
hewed to a stricter reading of this state's code of conduct, 
rejecting what it described as "value judgments" based on the current 
attitudes of federal officials.

William Slease, chief counsel of the New Mexico Supreme Court 
Disciplinary Board, said the issue is "not a prevalent problem." 
Slease said he is not aware of any public disciplinary actions 
against lawyers due to their work with clients involved in producing 
or distributing medical cannabis.

But the opinion might still give lawyers pause.

Duke Rodriguez, president of Ultra Health, a licensed marijuana 
producer, said he has also found a range of attitudes in the legal 
community toward representing clients like him. Some lawyers decline 
to represent businesses dealing in marijuana, while others only 
handle business matters such as forming limited liability companies. 
Some, he said, accept cannabis clients completely, and a few firms 
around the country have come to specialize in the marijuana industry.

Rodriguez said Ultra Health has found lawyers to represent the 
company but described the Ethics Advisory Committee's opinion as restrictive.

"It sure doesn't seem balanced with the reality of what's going on 
out there," he said.

Jason Marks, a former member of the New Mexico Public Regulation 
Commission and an attorney who has represented licensed producers, 
said the opinion seems to limit the rights of growers and dispensaries.

"They're depriving these business of a right to counsel," he said. 
"That's an inconvenience and a detriment."

Marks said he is still considering how the opinion might limit his 
work. The opinion is merely advisory and does not have the force of 
law or policy.

The New Mexico Supreme Court could lend clarity to the issue, Marks 
added, by changing the rules of professional conduct for attorneys.

A few states have taken such steps amid changes in drug laws and the 
proliferation of medical cannabis programs.

The highest court in Connecticut, for example, changed its rules to 
add that lawyers may "counsel or assist a client regarding conduct 
expressly permitted by Connecticut law" - language that was designed 
to cover medical marijuana. The Supreme Court of Colorado also added 
a comment to its rules, allowing lawyers to "assist a client in 
conduct that the lawyer reasonably believes is permitted [under state law]."

Rodriguez argued the federal government could remedy the issue by 
dropping marijuana from its list of most dangerous drugs, though that 
is a step the U.S. Drug Enforcement Administration has refused to take.

"As soon as there is a rescheduling or descheduling of cannabis, all 
of these issues will go away," he said.
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