Medical Marijuana Prompts Plan To Alter Ethics Rules

, The Connecticut Law Tribune

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The state Department of Consumer Protection in late January approved four permits for companies that want to grow medical marijuana. At the same time, state bar officials are moving closer to addressing the ethical concerns of lawyers who represent potential growers and distributors.

Under the Connecticut Palliative Use of Marijuana Act, approved companies can grow and sell marijuana in the state for treatment of pain in patients with cancer, AIDS, Parkinson's disease and a host of other illnesses.

With the social stigma attached to anything drug-related, and because marijuana is considered an illegal controlled substance under federal law, many lawyers have raised concerns that representing a licensed marijuana distributor in, say a zoning matter, could result in an ethics complaint and possible discipline. Ethics rules prohibit lawyers from involvement in any activity that violates any law. .

A proposal by the Connecticut Bar Association's ethics committee is seeking to ever-so-slightly amend the Rules of Professional Conduct to provide lawyers with some protection.

"The Department of Justice has issued a letter indicating it has no present indication to prosecute federal charges against people who are following state law, but that's a letter, that's not a congressional act," said John Logan, who chairs the state bar's ethics committee. "We felt that proposing a change to the rules is the best option."

Logan's committee last year issued an informal opinion on the ethics of representing marijuana businesses, an opinion that stopped short of saying such representations would be allowed once a growing or distribution operation was up and running.

In its opinion, the committee concluded that "lawyers may advise clients of the requirements of the Connecticut Palliative 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."

Logan said that opinion raised a key question that must be answered.

"What lawyers need to know, of course, is where the line is," he said.

In its rule change proposal, the ethics committee said it is seeking to ease the tension between Connecticut's new medical marijuana laws and the federal law that still classifies marijuana as an illegal controlled substance.

The proposal—which will be discussed in greater depth at the next Rules Committee meeting in late February and could go to the Judges of the Superior Court for approval this summer—calls for "very slight adjustments," as Logan put it, to rules 1.2 and 8.4 of the Rules of Professional Conduct. Both those section prohibit lawyers from being involved with illegal activity.

In the first proposal, new language would state that while a lawyer cannot counsel a client to engage in criminal activity, the attorney may "counsel or assist a client regarding conduct expressly permitted by Connecticut law."

To add further clarity on what is permitted, Logan has suggested adding language to the Rules of Professional Conduct stating that "counseling or assisting a client with regard to conduct expressly permitted under Connecticut law" would not constitute an ethics violation, even while marijuana remains illegal under federal law.

"This proposal does not create a perfect safe harbor for lawyers, but it's better than having nothing," Logan said.

However, the arrest of a lawyer for any charge would still trigger an ethics complaint. If a lawyer were to be charged with a state or federal crime stemming from his work in the medical marijuana industry, he would still face a disciplinary case for violating that rule.

It would be up to the Statewide Grievance Committee to decide if a violation occurred. Patricia King, the state's chief disciplinary counsel, said she had not completely reviewed Logan's proposal. But, she added, there would be some concern if the proposed rule is so broad as to "provide a defense for illegal activity."

"You wouldn't want a lawyer who was helping a client to engage is tax evasion to use the rule as a defense in a disciplinary case," she said.

Four companies received permits on Jan. 28 from the Department of Consumer Protection to operate dispensaries. The companies, which paid the $25,000 permit fee for a license, include Advanced Grow Labs in West Haven, Connecticut Pharmaceutical Solution LLC in Portland, Curaleaf LLC in Simsbury and Theraplant LLC in Watertown.

More than 20 entities have submitted applications to be approved dispensaries. The approvals for those licenses, of which there are expected to be three granted, will be announced before April.

Diane Whitney, a Pullman & Comley attorney who represented Advanced Grow Labs on land use issues within the permitting process, said changing the language of the Rules of Professional Conduct would put attorneys more at ease in their representation of clients who are associated with medical marijuana.

"It's important because right now there are at least two rules implicated, that if an attorney assists a client in breaking the law, it could be an ethics violation," Whitney said. "That creates a very uneasy situation."

Her firm has told its client there are certain tasks "we refuse to do," such as holding money in escrow accounts, for fear of "getting too close to the line."

The rule change, if approved, would allow lawyers to provide representation of medical marijuana businesses without as much worry of running into trouble with their law license.

"It's not iron clad," she said of the proposed change. "But it certainly helps."

Frederick Ury, of Westport's Ury & Moskow, is a former CBA president who is now a member of the American Bar Association's Commission on Ethics 20/20, which is studying the future of the law and the legal profession.

Ury, who is representing a Fairfield entrepreneur who is seeking approval for a marijuana dispensary, said the rule change is important for lawyers in the state.

"I think this would give them more confidence that they are not running afoul of the rules locally," he said. "That's a good thing."•

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