With the new Attorney General Jeff Sessions and administration promising to be tough on drugs and crime it should be interesting to see how the federal government treats marijuana. Remember that even though it may be legal in your state, it is still a federal crime to possess or use marijuana. With the election that just finished 28 states now permit the use in one form or another of marijuana.
An individual in Alaska, which now permits the use of marijuana, was completing the Federal Firearms Application for purchasing a gun. She was upset to find that question (11 e.) asks:
“e. Are you an unlawful user of, or addicted to, marijuana or any depressant, stimulant, narcotic drug, or any other controlled substance?”
So even if you are in a state that permits the use of marijuana, this being a federal application and legally use marijuana under state law, it is illegal under federal law. Likely many attorneys filling out their initial application for a bar license, they could be tripped up by the same question.
With Ohio’s, many attorneys were submitting inquiries about the ethics of attorneys being able to provide legal services to medical cultivators, processors and dispensaries or clients that wanted to do business with these entities.
The Board of Professional Conduct of The Ohio Supreme Court recently stated that Ohio attorneys are prohibited from counseling or assisting a client to engage in conduct that the lawyer knows to be “illegal” under any law. As such because federal law prohibits the sale and distribution of marijuana it is still an illegal act.
As such attorneys that engage in providing legal services to the Ohio Medical Marijuana business could be subject to ethics violations.
Beyond the ethics violations, attorneys in other states working with Marijuana clients have had their trust accounts seized and been subject to federal criminal prosecution. A recent ABA Journal Article on Marijuana Law also approached the same topic on a more in depth basis.
Some Attorney Malpractice Insurance carriers have refused to write Lawyers Professional Liability Insurance for a law firm that engages in working with Marijuana clients. Even if the Attorney Malpractice Insurance carrier will write the attorney working with Marijuana clients, they may find themselves without insurance coverage for those clients. Most Attorney Malpractice Insurance Policies have exclusions for attorneys that commit illegal acts.
The dilemma that all attorneys face when dealing with Marijuana clients is just because it is legal under state law, it is still illegal under federal law. Picking the wrong client at the wrong time could subject the attorney to disciplinary actions and criminal prosecution. The prior administration had a hands off approach towards Marijuana law for the most part. Lawyers would be an easy target of this enforcement as many that practice marijuana law advertise on the web about these services. Doing a Google search and the DEA would be off and running. Whether the new attorney general will vigorously enforce federal law remains to be seen. Not hard to understand why many Lawyers Professional Liability Insurance carriers are currently reluctant to insure Marijuana law practices.