Update - Lawyers and the Arizona Medical Marijuana Act

By By Patricia Sallen, Director of Special Services and Ethics Deputy General Counsel
May 24, 2011

The rapidly evolving issue of medical marijuana has prompted State Bar President Alan Bayham to ask the State Bar's Ethics Committee to provide the members with additional guidance.

In February, the Committee issued Ethics Opinion 11-01, which provides guidance to Arizona lawyers about their ethical obligations in representing a client in certain legal matters expressly permissible under the Arizona Medical Marijuana Act.

Since then, the state Department of Health Services issued regulations implementing the medical-marijuana law. Those regulations prompted U.S. Attorney for Arizona Dennis K. Burke to send a letter to the DHS director 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."

President Bayham, in a May 16, 2011, letter to the Ethics Committee, asked the Ethics Committee to consider certain issues prompted by Mr. Burke's letter, including issues related to a lawyer's personal conduct, such as using medical marijuana, supervising people who use medical marijuana, or participating in a medical marijuana-related business.  As President Bayham stated in his letter to the Committee:  "The situations in which these concerns arise involve [Arizona lawyers'] ability to advise a client with respect to the establishment of a dispensary and about their own medically prescribed personal use and the personal use of those whom they directly supervise. Your committee's focus on these issues would be most helpful to our membership, and thus we ask the Committee to entertain this request at your earliest convenience."

The Ethics Committee will review these issues and consider issuing a supplemental opinion.