Thursday, November 25, 2010

Arizona medical-pot law has attorneys in bad spot

Arizonans needing legal help with the new medical-marijuana law could find themselves adrift, unable to hire an attorney.

Patricia Sallen, ethics counsel for the State Bar of Arizona, said it may be a violation of the rules laid out by the state Supreme Court for lawyers to help their clients break the law.

Sallen said the Arizona statute that will formally become law after the Nov. 29 election canvass, does permit individuals with a doctor's recommendation to obtain up to 2 ½ ounces of marijuana every two weeks. It also sets up procedures for the state to license non-profit corporations to sell the drug.

But both the sale and possession of marijuana remain illegal under federal law, she added.

That, Sallen said, 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.

Sallen's preliminary opinion is not based just on conjecture of what the Arizona ethics rules require.

She pointed out 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, although 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 is irrelevant, the Maine opinion says.

And Sallen said the ethics 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, although she could not say when. She acknowledged that an opinion warning attorneys to avoid these cases could leave Arizonans without the legal help they need.

Some of the first questions may come from those needing legal assistance to incorporate a firm with the specific purpose of setting 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 probably 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?"

The formal opinion from Maine doesn't provide a bright line of what attorneys can and cannot do. In fact, the Maine board specifically dodged the issue, she added.

"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 says. "We can, however, state that participation in this endeavor by an attorney involves a significant degree of risk which needs to be carefully evaluated."

Sallen said that what attorneys do in California, which has one of the oldest medical-marijuana laws in the nation, is of little guidance, as that state's ethics rules differ from Arizona's 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's.

There has been no formal opinion from that state's Bar on the issue. But an 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 ethics rule) and should not delude themselves by indulging fine distinctions over the degree of their assistance or knowledge of a client's criminal conduct," attorney Alec Rothrock wrote. "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.

By Howard Fischer, Capitol Media Services



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