Academic journal article Missouri Law Review

Caught in a Haze: Ethical Issues for Attorneys Advising on Marijuana

Academic journal article Missouri Law Review

Caught in a Haze: Ethical Issues for Attorneys Advising on Marijuana

Article excerpt

I. INTRODUCTION

In 1920, the United States Congress amended the Constitution to outlaw the manufacture, transportation, and sale of alcohol. (1) Despite their aim, Prohibition Era laws were riddled with loopholes and exceptions. (2) Wine, for example, was allowed for religious purposes, which caused church attendance and the purported number of "rabbis" to skyrocket. (3) Similarly, doctors were permitted to prescribe whiskey for a variety of ailments, which caused a significant spike in registered pharmacies. (4) Religion and medicine were just a few of the many loopholes within the Prohibition laws. (5) The illegal sale of alcohol (also called "bootlegging") became increasingly common as stores and clubs (known as "speakeasies") developed a smuggling system to satisfy alcohol-seekers nationwide. (6) A black market emerged to meet the demand for alcohol, and citizens began brewing beer and distilling liquor in their homes. (7) The outlawing of alcohol also exposed millions of Americans to criminal penalties. (8) Courts and jails filled--so much so that prosecutors began making common practice of "plea bargaining" to avoid a severe backlog of cases. (9) Soon, the government realized the laws were not working, and in 1933, Amendment XXI repealed Prohibition; the alcohol industry was freed. (10)

History has a tendency of repeating itself. Today the story of Prohibition is being relived in the marijuana industry. (11) The illegal sale of marijuana is rampant. (12) Laws prohibiting marijuana have made criminals of millions of Americans. (13) Yet, in some states, qualifying patients may access medicinal marijuana for a variety of ailments, including pain, migraines, and arthritis. (14) Other states allow recreational marijuana use. (15) In fact, some form of marijuana is legal in most states. (16) Yet the possession, sale, and distribution of marijuana are still illegal under federal law. (17) It is not surprising, then, that patients, ordinary citizens, and businesses seek legal advice when confronted with these conflicting sets of laws.

This conflict between state and federal law puts attorneys in an ethical conundrum. An attorney who counsels an owner of a marijuana dispensary, for example, may face ethical penalties under Rule 1.2(d) of the ABA Model Rules of Professional Conduct. (18) Should attorneys be able to counsel clients on issues in strict compliance with state law without fear of punishment? Are marijuana business owners entitled to advice from legal counsel? (19) This Note seeks to develop and address these issues.

As a disclaimer, this Note does not advocate for or against the legalization of medicinal or recreational marijuana at the state or federal level. Instead, this Note outlines the history of marijuana legalization and the legal and ethical implications of conflicting federal and state laws. Part II lays the legal landscape of marijuana laws, describing how marijuana came to be criminalized at the federal level, how it has been accepted in various forms at the state level, and the ensuing issues with which the state and federal governments now grapple. Part III catalogs the various state responses to mixed signals from the federal government and Congress's recent attempt to reform the Controlled Substances Act. Lastly, Part IV contemplates implications of the Trump administration's priorities and ultimately suggests practical steps attorneys can take to ensure compliance with state and federal ethical guidelines. Part V concludes.

II. LEGAL BACKGROUND

Marijuana has not always been illegal. (20) In fact, at one point, marijuana was regularly used by the public and taxed by the federal government. (21) This Part discusses the path marijuana has taken, from its criminalization in federal law to its acceptance under most state laws. Then, this Part examines how the conflicting federal and state law conundrum has left attorneys in an ethical limbo. Finally, it describes the federal government's enforcement (or lack thereof) of ethical violations. …

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