In a wee bit of a watershed ethical event for attorneys engaged in representing business interests in Arizona, the State Bar of Arizona issued Ethics Opinion 11-01 in February of this year. It’s about the scope of permitted representation of medical marijuana enterprises by Arizona lawyers. It’s a fairly long opinion by Arizona bar standards, and it’s got some problems.
It seems to me that the State Bar Ethics Committee simply did not spend enough time vetting the analysis contained in its opinion with its “business bar” members. I believe the tone of the opinion would be vastly different had persons who actually (better still, routinely) represent business clients weighed in on several parts of the text of the opinion. First, however, in order to understand what my complaints are, you have to have read a few pertinent parts of the opinion, so here’s an extract at the beginning together with the full last few paragraphs. I’ve underlined a few key portions from the opinion below.
May a lawyer ethically advise and assist a client with respect to activities that comply with the Arizona Medical Marijuana Act (“Act”), including such matters as advising clients about the requirements of the Act, assisting clients in establishing and licensing non-profit business entities that meet the requirements of the Act, and representing clients in proceedings before state agencies regarding licensing and certification issues?
. . . .
As noted above, no prior Arizona ethics opinions or cases have addressed the novel issue presented by the adoption of the Act — whether a lawyer may ethically “counsel” or “assist” a client under the following conditions: (1) the client’s conduct complies with a state statute expressly authorizing the conduct at issue; (2) the conduct may nonetheless violate federal law; (3) the federal government has issued a formal “memorandum” that essentially carves out a safe harbor for conduct that is in “clear and unambiguous compliance” with state law, at least so long as other factors are not present (such as unlawful firearm use, or “for profit” commercial sales); and (4) no court opinion has held that the state law is invalid or unenforceable on federal preemption grounds.
In these circumstances, we decline to interpret and apply Ethical Rule 1.2(d) in a manner that would prevent a lawyer who concludes that the client’s proposed conduct is in “clear and unambiguous compliance” with state law from assisting the client in connection with activities expressly authorized under state law, thereby depriving clients of the very legal advice and assistance that is needed to engage in the conduct that the state law expressly permits. The maintenance of an independent legal profession, and of its right to advocate for the interests of clients, is a bulwark of our system of government. History is replete with examples of lawyers who, through vigorous advocacy and at great personal and professional cost to themselves, obtained the vindication of constitutional or other rights long denied or withheld and which otherwise could not have been secured.
A state law now expressly permits certain conduct. Legal services are necessary or desirable to implement and bring to fruition that conduct expressly permitted under state law. In any potential conflict between state and federal authority, such as may be presented by the interplay between the Act and federal law, lawyers have a critical role to perform in the activities that will lead to the proper resolution of the controversy. Although the Act may be found to be preempted by federal law or otherwise invalid, as of this time there has been no such judicial determination.
Accordingly, we believe the following is a reasonable construction of ER 1.2(d)’s prohibitions in the unique circumstances presented by Arizona’s adoption of the Act:
• If a client or potential client requests an Arizona lawyer’s assistance to undertake the specific actions that the Act expressly permits; and
• The lawyer advises the client with respect to the potential federal law implications and consequences thereof or, if the lawyer is not qualified to do so, advises the client to seek other legal counsel regarding those issues and limits the scope of his or her representation; and
• The client, having received full disclosure of the risks of proceeding under the state law, wishes to proceed with a course of action specifically authorized by the Act; then
• The lawyer ethically may perform such legal acts as are necessary or desirable to assist the client to engage in the conduct that is expressly permissible under the Act.
This opinion and its construction of ER 1.2(d) are strictly limited to the unusual circumstances occasioned by the adoption of the Act. Any judicial determination regarding the law, a change in the Act or in the federal government’s enforcement policies could affect this conclusion. The Committee cannot render opinions based on pure questions of law or on questions involving solely the lawyer’s exercise of judgment or discretion. Committee on the Rules of Professional Conduct Statement of Jurisdiction § 9(a), (c). This opinion does not address whether specific conduct is preempted by federal law; whether the Act is or is not available to the client as a defense for a violation of federal law; or whether the lawyer’s assistance to the client may expose the lawyer to criminal prosecution under federal law.
Lawyers may ethically advise clients about complying with the Arizona Medical Marijuana Act, including advising them about compliance with Arizona law, assisting them to establish business entities, and formally representing clients before a governmental agency regarding licensing and certification issues, but only in the narrow circumstances set forth in this opinion and only if lawyers strictly adhere to those requirements.
In the next installment, I’ll explain why this opinion makes me quite uncomfortable and why other practicing attorneys might share my discomfort.