Court to address dilemma over representing marijuana businesses

Minnesota Supreme Court has final say on whether an attorney is disciplined or not

By Barbara L. Jones
The Daily Record Newswire

MINNEAPOLIS, MN - When Minnesota joined 22 other states and the District of Columbia in legalizing medical marijuana, it also created a new area of law practice - representing clients whose business is the legal sale of the drug.

Those lawyers immediately ran into a wall that is the federal Controlled Substance Act, under which marijuana remains illegal. That puts attorneys at personal risk of an ethics violation by giving advice.

That's so even though the Justice Department's current position is that federal resources should not be used to prosecute persons whose actions comply with their states' laws permitting medical use of marijuana.

In Minnesota, attorneys at Thompson Hall Santi Cerny & Dooley have petitioned the Minnesota Supreme Court to amend the ethics rules to allow them to represent businesses.

In the meantime, the lawyers are going to represent the clients who hire them, said attorney Aaron Hall.

"Our view is that we are going to cautiously represent medical marijuana businesses. We believe this is a safe position given the political climate in Washington, D.C., and here," Hall said.

Court holds trump card

This problem was anticipated. The statute, Ch. 311, clearly states that "An attorney may not be subject to disciplinary action by the Minnesota Supreme Court or professional responsibility board for providing legal assistance to prospective or registered manufacturers or others related to activity that is no longer subject to criminal penalties under state law pursuant to sections 152.22 to 152.37." That's fine, except it is for the Supreme Court, not the Legislature, to discipline attorneys.

According to a press release from Hall, the Minnesota Lawyers Professional Responsibility Board would not give attorneys the green light to represent marijuana businesses because of that separation of powers. The board said "no state statute can trump the Supreme Court's authority to decide when attorneys are disciplined for ethics violations," Hall said in the release.

But Martin Cole, director of the Office of Lawyers Professional Responsibility, told Minnesota Lawyer "We would be hard-pressed to discipline an attorney who is in compliance with state law without the court taking some kind of position." He also said he did not anticipate any opposition to the petition from his board.

'It ought to be in the rule'

States that have faced this issue have solved it by amending the comments to their rules. As an example, the Thompson Hall firm proposed a comment to the rules that states, "A lawyer may counsel and assist a client in conduct the lawyer reasonably believes is permitted by [2014 Minn. Laws, ch. 311] and state and local law implementing these provisions. In these circumstances the lawyer shall also advise the client regarding related federal law and policy." That is similar to language adopted by the courts in Colorado and Nevada.

But the Minnesota Supreme Court has repeatedly stated it does not consider comments part of the rules and does not officially recognize them. Ethics attorney Eric Cooperstein said, "In Minnesota, it is not clear that adding or amending a comment to the Rules of Professional Conduct would provide the protection that the petitioners are seeking, given that the comments are guidelines and not black-letter rules."

Civil procedure practitioner David Herr said that the court has made it clear in every order it issues on court rules that it isn't adopting the comments.

"They have been very reluctant to consider comments in the ABA model rules to have the force of the rules. The court is maintaining a bright line between enforceable rules upon which discipline can be based and more hortatory statements of how things should be," he said. "If lawyers want to have immunity from discipline it ought to be in the rule."

However, recently the Minnesota State Bar Association and the Lawyers Professional Responsibility Board filed a petition with the court that requests, among other things, that the court at least acknowledge changes to the comments. It does not specifically address Rule 1.2.

Hall said that the petition only mentions the comments from Colorado as an example and that he did not propose to the court a particular way to amend the rule.

Published: Tue, Aug 19, 2014