Last week, the Disciplinary Board of Hawaii’s Supreme Court issued an opinion that limits the role that lawyers can play in the bourgeoning medical marijuana dispensary industry. The opinion states that a lawyer can advise a client on the legality of marijuana production and distribution under state and federal law. A lawyer may also choose to advocate for changes in state and federal law on this subject. However, a lawyer may not provide legal services to help create or operate a medical marijuana business, as it is illegal under federal law. In other words, Hawaiians who wish to open a marijuana-related business cannot consult with a lawyer as part of the process.
As states experiment with the legalization of marijuana, each will have to make a decision about how the legal profession will play a role, and how to navigate the conflict between state and federal law. Hawaii’s decision is the latest in a long line of marijuana-friendly states’ interpretations of professional ethics rules.
Marijuana in Hawaii
Hawaii legalized medical marijuana some 15 years ago, but only recently enacted a law that would license marijuana dispensaries for patients. The new law is fairly limited. It will set up a state-wide dispensary system with a total of up to 16 dispensaries. These dispensaries are not inexpensive ventures; the new law will require potential licensing candidates to have at least $1.2 million in the bank. The dispensaries will be resupplied with support from production centers around the state.
Under the latest Disciplinary Board opinion, individuals who wish to set up dispensaries or production centers are not entitled to legal advice or assistance beyond counseling on the validity, scope, and meaning of the new law.
Reasons for the Hawaii Disciplinary Board Decision
Hawaii’s Disciplinary Board cites two main reasons for its decision:
First, the Board is concerned by the fact that Congress has not amended federal law; nationally, marijuana is still illegal. The Ethics Board recognizes that the Department of Justice and Congress have both allowed the enforcement of marijuana-related laws to decline. However, the opinion also notes that this is not a permanent federal stance.
Second, the Board observes that the Hawaii Supreme Court has not amended the rule of professional conduct that applies to client conduct that is illegal under federal law. The rule currently states that “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 or assist a client to make a good faith effort to determine the validity, scope, and meaning of the law.” This type of rule exists in all states. However, the rule has been modified in some states to account for conflicts between state and federal law over marijuana.
Legal Ethics in Other Marijuana-Friendly States
Hawaii is not the only state in which medical marijuana laws have caused ethical conflicts. The Maine Professional Ethics Commission has also restricted the role of attorneys in marijuana law. In Maine, the Rules of Professional Conduct for attorneys distinguish between “presenting an analysis of the legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.” Maine lawyers are thus prohibited from assisting clients in forming medical marijuana enterprises.
Other states have also wrestled with the conflict between the public need for good, reliable legal advice and the furtherance of illegal activities. The Colorado and Nevada Bars have amended their ethics rules with a comment that allows lawyers to provide advice and services so long as they also advise about federal laws (making it clear that marijuana is not completely legal). The Washington Bar has allowed lawyers to provide services “at least until” the federal enforcement policies change.
What Will Happen in Hawaii?
Unfortunately, the public suffers when legal assistance is not available on topics of state law. A lack of legal counseling will not prevent individuals from setting up marijuana dispensaries or grow houses. The absence of legal counsel, however, prevents marijuana dispensaries from making some educated legal decisions that conform to the letter of Hawaiian law. It may also make the process of applying for a state license more difficult and time-consuming than it would otherwise be.
It is also possible that the Hawaiian Supreme Court will take a hint from this opinion and change their legal ethics rule to allow more attorney participation in marijuana law. This would be following in the footsteps of most other states that have partially legalized marijuana.