by Mary A. Dannelley

In November 2016, California joined a growing number of states that have passed laws legalizing the possession and use of marijuana for non-medical purposes by persons over the age of 21. See Cal. Health & Safety Code §§ 11362.1-11362.45. Effective January 1, 2018, the retail sale of marijuana for adult use by licensed stores will be legal in California pursuant to regulations to be adopted by the Bureau of Marijuana Control. See Cal. Bus. & Prof. Code §§ 19300-19360, 26000-26211. California’s Proposition 64, also known as the Adult Use of Marijuana Act (AUMA), expanded upon pre-existing laws governing the legal cultivation, use, distribution, and sale of marijuana for medicinal purposes. The passage of these new state laws places California attorneys who advise clients regarding California’s marijuana laws in an ethical conundrum.

California’s laws are in direct conflict with federal laws which continue to classify marijuana as a Schedule 1 drug under the Controlled Substances Act and make it a crime to “manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense” marijuana for any purpose. See 21 U.S.C. § 812(c), Schedule 1(c)(10), (d); 21 U.S.C. § 841(a)(1). Therefore, a California attorney who advises his or her clients regarding the cultivation, use, or sale of marijuana in California faces the ethical dilemma of also advising the client on how to engage in conduct that is illegal under federal law in contravention of the California Rules of Professional Conduct and California’s State Bar Act, California Business and Professions Code section 6000, et seq.

To date, the California State Bar has not published a formal opinion on whether an attorney runs afoul of his or her ethical duties by advising clients regarding California’s marijuana laws; the issue remains an open question for California attorneys. This article addresses ethical issues for attorneys representing clients involved with marijuana. Note that the separate issue of criminal liability of the lawyer resulting from aiding and abetting a client in the violation of the federal Controlled Substances Act is an important consideration beyond the scope of this article.

A. California’s Evolving Laws Legitimizing Adult Marijuana Use

In 1996, California adopted the Compassionate Use Act (CUA), California Health and Safety Code Section 11362.5, which provided for the first time that seriously ill Californians had the right to obtain and use marijuana for medical purposes. Upon the passage of the CUA, patients and primary caregivers did not risk criminal prosecution for obtaining and using marijuana upon the recommendation of a physician. See id. at § 11362.5(d).

The Medical Marijuana Program Act (MMPA), California Health and Safety Code section 11362.7, et seq., adopted in 2004, gave further clarity to the provisions of the CUA. Among other things, the MMPA included: (1) a comprehensive set of definitions clarifying who is a qualified patient or primary caregiver, who is an attending physician, and what constitutes a serious medical condition for which marijuana use is authorized (id. at § 11362.7); (2) a provision mandating that local health departments develop a voluntary identification card program to enable law enforcement to identify qualified patients and primary caregivers with ease (id. at § 11362.71); (3) a provision clarifying the quantities of medicinal marijuana that qualified patients and primary caregivers can legally possess (id. at § 11362.77); and (4) a provision mandating that the Department of Food and Agriculture to establish a Medicinal Cannabis Cultivation Program to ensure oversight of the commercial cultivation of medicinal marijuana (id. at § 11362.777). The comprehensive provisions of the MMPA highlight the potential need for patients, physicians, primary caregivers, and licensed commercial cultivators to seek guidance from an attorney on how to comply with California law.

Finally, in November 2016, Californians voted in favor of Proposition 64 and the AUMA. As set forth above, the AUMA is not a simple law that makes it legal for adults twenty-one and over to possess and use limited quantities of marijuana for non-medicinal use. The AUMA contemplates that the cultivation and sale of non-medicinal marijuana for adult use will also become legal, subject to a host of regulations, effective in 2018. Again, the new laws and contemplated regulatory scheme for cultivation and use of recreational marijuana underscore the value of seeking appropriate legal advice before embarking on a business venture involving recreational marijuana to ensure compliance with California law.

B. Local Bar Opinions Conclude That Advising Clients How to Comply With California’s Medicinal Marijuana Laws Does Not Violate the Ethical Rules

Rule 3-210 of the California Rules of Professional Conduct, entitled “Advising the Violation of Law,” provides:

A member shall not advise the violation of any law, rule, or ruling of a tribunal unless the member believes in good faith that such law, rule, or ruling is invalid. A member may take appropriate steps in good faith to test the validity of any law, rule, or ruling of a tribunal.

Cal. R. Prof. Conduct 3-210. California Business and Professions Code section 6068(a) further provides that every attorney has a “duty” to “support the Constitution and laws of the United States and of this state.” Cal. Bus. & Prof. Code § 6068(a). It is unclear how an attorney can advise a client who intends to engage in the possession, use, cultivation, or sale of marijuana under California’s marijuana laws without running afoul of these fundamental ethical duties to also uphold contrary federal law. The unsettled ethics issue is whether a well-intended, California attorney who provides such counsel acts in violation of Rule 3-210 of the California Rules of Professional Conduct and California Business and Professions Code section 6068(a) because such activities violate the federal Controlled Substances Act.

As set forth above, California’s standing Committee on Professional Responsibility and Conduct (COPRAC) has not rendered an opinion on the issue of whether an attorney violates his or her ethical duties by advising clients on the possession, use, cultivation, or sale of marijuana under California law. Two local bar associations, the Bar Association of San Francisco (SFBA) and the Los Angeles County Bar Association (LACBA), issued opinions on the issue of whether advising clients on the possession, use, cultivation, or sale of medicinal marijuana violates an attorney’s duties of professional responsibility and ethics. Both opinions concluded that an attorney may ethically advise a client on how to comply with California law in regards to the use, cultivation, or operation of a dispensary of medicinal marijuana, but may not advise the client to violate federal law and must advise the client that the conduct may violate the federal Controlled Substances Act. See LACBA, Comm’n on Prof’l Responsibility & Ethics, Formal Op. 527, 9 (2015) (“[I]t is the Committee’s opinion that a member does not violate Rule 3-210 by advising a client regarding how to cultivate, distribute, and consume marijuana in a manner that would not constitute a crime under California law.”); SFBA, Formal Op. 2015-1, 2-3 (“We believe that the lawyer may advise, assist, and represent the client in complying with state and local laws and ordinances while, at the same time, counseling against conduct that may invite prosecution for violation of federal laws.”) (noting, “[w]e know of no other subject in which California law permits what is forbidden by federal penal law” and, therefore, Rule 3-210 did not contemplate the conflict in laws).

Both county bar associations drew a distinction between advising a client on how to comply with California’s law and advising a client to violate federal law. SFBA, Formal Op. 2015-1, 3 (“Assisting the client who wants to comply with state and local laws is not the same as advising the client to violate federal laws.”); LACBA, Formal Op. 527, 12 (same). The Los Angeles County Bar Association noted the perverse outcome if a California attorney is ethically barred from representing a client trying to ensure compliance with California law:

An analysis that would conclude that a California client cannot obtain legal advice about how to comply with California law from a lawyer or that a client cannot obtain legal assistance in carrying out that advice disconnects the profession from its function—to assist clients in complying with the law, in this case California law. It would be a strange result indeed, if a client who wants to avoid committing a crime under California law cannot receive assistance from a lawyer.

LACBA, Formal Op. 527, 11. Both county bar associations were careful to note that an attorney should only advise the client in ensuring his or her conduct conforms to California law, should advise the client against otherwise violating the Controlled Substances Act, and should warn the client about the risk of prosecution under federal law. See, e.g., SFBA, Formal Op. 2015-1, 4.

While the opinions issued from the SFBA and LACBA provide guidance for attorneys and certainly provide some comfort that an attorney should not be disciplined provided his conduct is consistent with those opinions, the bottom line is that COPRAC has not issued its own formal opinion from the State Bar of California. Thus, attorneys in California need to be cognizant that the issue remains unsettled in California.

C. Other Jurisdictions Present a Split of Authority

Most states have an ethical rule comparable to Rule 3-210 that prohibits assisting a client in the violation of law or have adopted American Bar Association Model Rule 1.2, which provides in pertinent part:

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.

Model Rules of Prof’l Conduct r. 1.2(d) (Am. Bar Ass’n 1980). Consequently, other jurisdictions that have passed state and local laws legalizing marijuana use for medicinal or other purposes also have confronted the ethical issue of whether an attorney can advise a client regarding state marijuana laws that conflict with the federal Controlled Substances Act. The Bar Associations of those states that have opined on the issue are not consistent—some conclude that an attorney who advises a client on such activities violates his ethical duties, while others conclude the attorney does not run afoul of state ethical rules. See SFBA, Formal Op. 2015-1, 3-4 (providing a survey of state opinions as of 2015). The divergence in the opinions by California’s sister states highlights that the issue is not settled and is highly controversial. Notably, after advisory opinions concluding that an attorney could not ethically advise a client regarding activity authorized under the state marijuana laws, the Ohio Supreme Court and the Colorado Supreme Court modified Rule 1.2 of their respective rules of professional conduct to clarify that an attorney is not prohibited from assisting a client in conduct authorized by the state marijuana laws. Colo. R. Prof. Conduct 1.2 cmt. 14; Ohio R. Prof. Conduct 1.2(d)(2). A specific exemption for advice on compliance marijuana law was requested in proposed Rule 1.2.1, in connection with the revision of California’s Rules of Professional Conduct. The Commission charged with revising the rules recommended a new comment permitting lawyers to advise on California laws so long as they also advise on potentially conflicting federal law and policy. Proposed rule 1.2.1 was approved by the California State Bar’s Board of Trustees. California Supreme Court approval of the proposed rule remains pending.

D. Attorneys May Run Afoul of the Ethical Rules by Advising Clients How to Cultivate, Use, or Sell Marijuana Under California Law

A California attorney looking for a reliable answer to the question of whether he or she can advise a client regarding activities related to adult marijuana use under California law will not find one. The opinions issued by The Bar Association of San Francisco and Los Angeles County Bar Association provide guidance and give some comfort that the State Bar ultimately would reach a similar conclusion—namely, that an attorney can advise a client on how to comply with the California laws governing medicinal and adult marijuana use, but cannot otherwise advise a client in regards to activity that violates the federal Controlled Substances Act and must inform the client of the risk of prosecution under federal law. That said, the opinions focus on medical marijuana. They also rely on earlier guidance from the U.S. Department of Justice, which may change with the current administration. The lack of uniformity in the opinions issued by the state bars of other jurisdictions creates uncertainty that cannot be ignored. At this juncture, California attorneys with clients seeking advice regarding activities related to marijuana possession, use, cultivation, or dispensation should be wary that the issue is not settled and, at a minimum, comply with the guidance provided by the two opinions issued by The Bar Association of San Francisco and the Los Angeles County Bar Association. Given the lack of clarity on the issue and absence of guidance for California attorneys, this issue is ripe for clarification from COPRAC or, alternatively, further modification to Rule 3-210 of the Rules of Professional Conduct.

Mary A. Dannelley is a sole practitioner in Newport Beach, California. Ms. Dannelley practices in the areas of commercial and employment litigation. Ms. Dannelley also provides employment counseling to employers and conducts independent workplace investigations. Ms. Dannelley is a member of the OCBA Professionalism & Ethics Committee. Ms. Dannelley can be reached at mary@dannelleylaw.com.