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.
Contact Andrew Oxford at 505-986-3093 or email@example.com. Follow him on Twitter @andrewboxford.