Mon, Aug. 19

Dispensaries will find legal help hard to come by under new medical marijuana law

PHOENIX -- 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 non-profit 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, 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 -- (dash) and specifically, imposing a significant penalty -- (dash) is probably minimal.

"The real issue that Colorado lawyers should ponder is not disciplinary prosecution but ethical purity,' he wrote.

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.