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State Bar Releases Ethics Opinion on Medical Marijuana Act

PHOENIX – The State Bar of Arizona’s Committee on the Rules of Professional Conduct has issued an opinion that says lawyers may assist clients in complying with the state’s new Medical Marijuana Act.

The issue arose because of a conflict between state and federal law, and that conflict’s intersection with legal ethics. Although Arizona’s new law legalizes medical marijuana in the state, federal law still prohibits the manufacture, distribution or possession with intent to distribute. An ethical rule prohibits a lawyer from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent.

However, the newly released ethics opinion says that Arizona lawyers may assist clients under the following circumstances:

  • The client requests assistance for actions expressly permitted by the Arizona Medical Marijuana Act;
  • The lawyer advises the client about the potential implications and consequences of federal law (or recommends client seek proper guidance); and
  • The client knowingly decides to move forward with full knowledge of conflicting federal law.

The opinion notes that no court opinion has held that Arizona’s law is invalid or unenforceable and that the federal government has essentially carved out a safe harbor for some conduct that is in “clear and unambiguous compliance” with 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,” according to the opinion.

The opinion is strictly limited to the unusual circumstances created by the adoption of Arizona’s new Medical Marijuana Act. Any court ruling that affects the Act may also affect the opinion.

The full opinion is available here.

State Bar ethics opinions are advisory in nature only and are not binding in any disciplinary or other legal proceedings.