Editorial: Only A First Step For Medical Marijuana
Ailing patients, marijuana growers, prescribing physicians, and dispensing pharmacists are off and running, or maybe we should say "smokin'," with the recent approval of state regulations implementing Public Act 12-55, An Act Concerning the Palliative Use of Marijuana, which legalized medical marijuana in Connecticut.
Two significant problems remain. Marijuana is a Schedule I drug under the federal Controlled Substances Act (CSA). Therefore, growing, dispensing, possessing, and using marijuana in any form for any purpose in the state of Connecticut is still a violation of federal law. A major breakthrough occurred in late August when U.S. Attorney General Eric Holder announced that the Department of Justice would take a "trust and verify" approach to allowing states to create its own programs to regulate and implement medical marijuana and recreational use for adults. However, he made clear he would vigorously enforce federal law in eight key areas, including sale to minors, diversion to states where it has not been authorized, marijuana and revenue going to criminal enterprises, and possession or use on federal property.
All that is just fine, except there remain major impediments to orderly implementation. Because the DOJ will still prohibit use and possession of marijuana on federal property, a dependent spouse of a military member cannot, even with a prescription, possess or use the drug in his or her home on base. A U.S. Park Service ranger on chemotherapy cannot have the drug at work or use it there. Children may not have the drug, although some doctors feel they may medically benefit from its use. The pharmaceutical companies will still not get involved because they are afraid of prosecution and cannot move marijuana interstate. The result of such limitations is a balkanized non-system of ad hoc regulations, questionable quality control in some states, limited production and distribution capacity, high entry fees and taxes, and little competition. In some places it will be much cheaper to buy marijuana on the street.
Banks, now more closely watched than ever, are not interested in the business, estimated at $1.7 billion in 2011, out of fear of violating federal anti-money laundering rules. Banks were not mentioned in the four-page memo DOJ issued on the new policy.
The federal and state drug-free school zone laws remain in effect, and a footnote in the DOJ memo says prosecutors will go after people "when marijuana trafficking takes place near an area associated with minors" whatever that means.
What the memo giveth, it also largely taketh away. Try these two lines: "This memorandum does not alter in any way the Department's authority to enforce federal law, including federal laws relating to marijuana, regardless of state law. Neither the guidance herein nor any state or local law provides a legal defense to a violation of federal law, including any civil or criminal violation of the CSA."
And the pièce de résistance: "This memorandum is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal." Cold comfort, indeed.
The only real solution to this continuing mess is for the federal government to acknowledge that marijuana has some medical use and move it to Schedule II where it would be treated like all the other highly-controlled Schedule II drugs, including cocaine, oxycodone, and Ritalin. Get the individual states out of the marijuana business and let Big Pharma have at it – better quality control, cheaper drugs, and deep pockets when something goes wrong.
At the same time, Connecticut Chief Disciplinary Counsel Patricia King is in an untenable position. She must enforce rules concerning professional conduct and ethics against lawyers who represent anyone in the medical marijuana business, from the growers to the prescribing physician, and dispensing pharmacists, to patients possessing and using medical marijuana, even if they also stay within the limits of the legalization under Connecticut's law. She has no discretion under Practice Book Superior Court Rules, Sec. 2-34A. At the American Bar Association's recent annual meeting, King County, Wash., lawyers submitted the following resolution to the House of Delegates: "RESOLVED, That the American Bar Association urges lawyer disciplinary authorities not to take disciplinary action against lawyers who counsel and assist clients about compliance with state and territorial laws legalizing the possession and use of marijuana." It was withdrawn before hitting the floor, but it signals a concern that lawyers could be disciplined under our Rules of Professional Conduct.
It is Rule of Professional Conduct 1.2(d) with which we must be particularly concerned: "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 a client to make a good faith effort to determine the validity, scope, meaning or application of the law."
Yes, the Connecticut Bar Association's Professional Ethics Committee issued an informal opinion (2013-02), the substance of which is that Connecticut attorneys can help a little, but not too much. That informal opinion is worthy of Casper Milquetoast. You tell us what you think this double speak, straight from the informal opinion, says Connecticut lawyers can do with impunity: "It is our opinion that lawyers may advise clients of the requirements of the Connecticut Palliative Use of Marijuana Act. Lawyers may not assist clients in conduct that is in violation of federal criminal law. Lawyers should carefully assess where the line is between those functions and not cross it."
We need a strong formal opinion, but that is not enough, because the state disciplinary counsel has no discretion to dismiss complaints and no opinion will necessarily stop the statewide grievance committee and then the Superior Court from disciplinary action. The General Assembly needs to step up and legislate, to clear the road ahead.