Reminder About Lawyers and Medical Marijuana

By Patricia Sallen, Director of Special Services and Ethics Deputy General Counsel
May 10, 2011

The Arizona Department of Health Services recently issued rules creating regulations to implement the Arizona Medical Marijuana Act. The rules prompted a stern letter from U.S. Attorney for Arizona Dennis K. Burke stating that "growing, distributing, and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws that purport to permit such activities." Burke's letter reiterated a 2009 U.S. Justice Department letter on the issue.

In light of these recent developments, the State Bar reminds members of the guidance it has issued on lawyers' ability to ethically counsel or assist a client in legal matters expressly permissible under the Arizona act. Ethics Op. 11-01 advised that lawyers ethically do so if: (1) at the time the advice or assistance is provided, no court decisions have held that the act provisions relating to the client's proposed course of conduct are preempted, void or otherwise invalid; (2) the lawyer reasonably concludes that the client's activities or proposed activities comply fully with state law requirements; and (3) the lawyer advises the client regarding possible federal law implications of the proposed conduct if the lawyer is qualified to do so, or recommends that the client seek other legal counsel regarding those issues and appropriately limits the scope of the representation. Read the opinion here.