Can a Lawyer "ethically advise & assist" MMJ Patients in Az?

The Az State Bar Proposed:
May a lawyer ethically advise and assist a client with respect to activities that comply with the Act, including such matters as advising clients about the requirements of the Act, assisting clients in establishing and licensing non-profit business entities that meet the requirements of the Act, and representing clients in proceedings before state agencies regarding licensing and certification issues?

With this in mind:

Goes along with the Drivers License contractual agreement that many hold with the State through the ADOT. You are not afforded counsel because through "implied consent" you waived that right through the contract that one signs for a plastic card that says: "Drivers License". Remind you of any other card you recieve when you, through implied consent, waive your rights? Hint: It is Green!!

(Copied & Pasted from Az Bar)
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A lawyer may ethically counsel or assist a client in legal matters expressly permissible under the Arizona Medical Marijuana Act (“Act”), despite the fact that such conduct potentially may violate applicable federal law. Lawyers may do so only if: (1) at the time the advice or assistance is provided, no court decisions have held that the provisions of the Act relating to the client’s proposed course of conduct are preempted, void or otherwise invalid; (2) the lawyer reasonably concludes that the client’s activities or proposed activities comply fully with state law requirements; and (3) the lawyer advises the client regarding possible federal law implications of the proposed conduct if the lawyer is qualified to do so, or recommends that the client seek other legal counsel regarding those issues and appropriately limits the scope of the representation.

FACTS

In the 2010 general election, Arizona voters approved Proposition 203, titled “Arizona Medical Marijuana Act” (“Act”), which legalized medical marijuana for use by people with certain “chronic or debilitating” diseases. The proposition amended Title 36 of the Arizona Revised Statutes by adding §§ 36-2801 through -2819 and also amended A.R.S. § 43-1201. Arizona became the 16th jurisdiction (15 states and the District of Columbia) to adopt a medical-marijuana law.

Despite the adoption of Arizona’s Act, 21 U.S.C. § 841(a)(1) of the federal Controlled Substances Act (“CSA”) continues to make the manufacture, distribution or possession with intent to distribute marijuana illegal.

In an October 19, 2009, memorandum (“DOJ Memorandum”), the U.S. Department of Justice advised that it would be a better use of federal resources to not prosecute under federal law patients and their caregivers who are in “clear and unambiguous compliance” with state medical-marijuana laws. The DOJ Memorandum indicates that federal prosecutors still will look at cases involving patients and caregivers, however, if they involve factors such as unlawful possession or use of a firearm, sales to minors, evidence of money-laundering activity, ties to other criminal enterprises, violence, or amounts of marijuana inconsistent with purported compliance with state or local law.

Although characterizing patients and their caregivers as low priorities, the DOJ Memorandum does not characterize commercial enterprises the same way. In fact, the DOJ Memorandum says that the “prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority” of the DOJ. [1]

The DOJ Memorandum explains that the DOJ’s position is based on “resource allocation and federal priorities” and

does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.

OPINION

I. Introduction

The Act’s passage gives rise to complex issues related to the proper ethical role of lawyers in advising and assisting clients about activities falling within the scope of the Act but which potentially may violate applicable federal law. Novel issues are presented regarding the relationship between Arizona’s Act and federal law prohibitions on the manufacture, distribution or possession of marijuana.

In addition to such unresolved legal issues, the DOJ Memorandum leaves unclear the extent to which federal prosecutors will pursue violations of federal law for conduct that complies fully with Arizona’s Act and whether Arizona’s medical-marijuana law ultimately may be held to be preempted or invalid in whole or in part.

While these issues are being decided by prosecutors and courts, it is important that lawyers have the ability to counsel and assist their clients about activities that are in compliance with the Act — and traditionally at the heart of the lawyer’s role — by assisting clients in complying with the Act’s requirements through the performance of such legal services as: establishing medical-marijuana dispensaries; obtaining the necessary licensing and registrations; representing clients in proceedings before Arizona agencies responsible for implementing the Act; and representing governmental entities to draft rules and regulations or otherwise counsel the governmental entity with respect to its rights and obligations under and concerning the Act.

II. Ethical Rule (ER) 1.2(d) and Prior Ethics Opinions and Court Decisions

Although Arizona’s medical-marijuana law is new, it raises a timeless issue for lawyers: whether the client is seeking the lawyer’s help to engage in conduct that the lawyer knows is criminal or fraudulent. As one treatise explains, Model Rule (MR) 1.2(d), which mirrors Arizona’s ER 1.2(d), states the dividing line as follows:

[W]hile a lawyer may discuss, explain, and predict the consequences of proposed conduct that would constitute crime or fraud, a lawyer may not counsel or assist in such conduct. Rule 1.2(d) is thus the close relative – in the disciplinary context – of the criminal law of aiding and abetting, and the civil law of joint tort feasance. As is the case in those other forms of accessorial liability, however, the principle of Rule 1.2(d) is much easier to state than to apply.

Geoffrey C. Hazard Jr. and W. William Hodes, The Law of Lawyering § 5.12 at 5-37, 5-38 (3d ed. 2005).

Comment 10 to ER 1.2 emphasizes that a lawyer is not for hire as an accomplice or enabler of criminal conduct:

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.

These principles have been applied in three prior Arizona ethics opinions and in Arizona disciplinary cases, which have addressed the issue of whether the lawyer could affirmatively counsel or recommend conduct by the client that the lawyer knew was criminal or fraudulent.

The first two ethics opinions addressed whether a lawyer may advise a client to refuse to submit to blood, breath or urine tests upon being arrested for driving while intoxicated. Ariz. Ethics Ops. 86-05 (March 1986), 87-05 (February 1987). Opinion 86-05 concluded that, based on the then-state of the law, a lawyer could not advise a client to refuse to submit to a test upon being arrested for DUI, but could discuss the consequences of refusal without actually counseling refusal. When a new appellate opinion on the subject changed the law several months later, the Committee reconsidered Op. 86-05 and issued Op. 87-05, which concluded that a lawyer could ethically advise a client to refuse to undergo blood, breath or urine tests. [3]

In discussing ER 1.2(d) under the then-state of the law, Op. 86-05 concluded:

It is one thing to tell a client that proposed conduct may violate the antitrust laws, for example. It is quite another to advise the client affirmatively to undertake such conduct. ER 1.2(d), recognizing the distinction, explicitly forbids a lawyer to “counsel a client to engage… in conduct that the lawyer knows is criminal or fraudulent.” Neither “criminal” nor “fraudulent” is explicitly defined in either the Rule or the accompanying Comment.

Similarly, the third opinion addressed whether a lawyer may ethically advise a client that the client may record telephone conversations between the client’s children and the client’s former spouse without the former spouse’s knowledge and consent. Ariz. Ethics Op. 00-04 (November 2000). In Op. 00-04, the answer to whether a lawyer could ethically advise a client to record a telephone call hinged on the answer to the basic question of whether the client’s proposed conduct would be “illegal under federal or state law.” If so, “then the inquiring attorney may not, under ER 1.2(d), advise the client to tape record telephone conversations between the client’s children and the client’s former spouse.”

Arizona lawyer-discipline cases demonstrate that ER 1.2(d) (or its predecessor, DR 7-102(A)(7), which contained generally the same language [4]) has been applied to sanction lawyers who affirmatively counseled their clients to engage in conduct that was knowingly fraudulent or otherwise in violation of state law, but not in a conflict-of-laws circumstance. E.g., In re Burns, 139 Ariz. 487, 679 P.2d 510 (1984) (by urging his client to take settlement funds and not pay an Air Force lien for medical services, lawyer “encouraged his client to commit fraud on the United States government”); In re Nulle, 127 Ariz. 299, 620 P.2d 214 (1980) (lawyer violated DR 7-102(A)(7) by effectively advising corporate client’s president to falsely represent himself as the sole owner on a liquor-license application thus violating state law).

III. Medical Marijuana Laws in Other Jurisdictions

Of the other jurisdictions that have legalized medical marijuana [5], it appears that only Maine has addressed the intersection of state-authorized medical marijuana and legal ethics. [6] In Maine Op. 199 (July 7, 2010), the Professional Ethics Commission of the Maine Bar Board of Overseers also warned lawyers about this issue. Maine’s version of ER 1.2(d) is the same as Arizona’s, except for one word immaterial to this analysis. [7]

Maine concluded:

IV. Analysis

As noted above, no prior Arizona ethics opinions or cases have addressed the novel issue presented by the adoption of the Act — whether a lawyer may ethically “counsel” or “assist” a client under the following conditions: (1) the client’s conduct complies with a state statute expressly authorizing the conduct at issue; (2) the conduct may nonetheless violate federal law; (3) the federal government has issued a formal “memorandum” that essentially carves out a safe harbor for conduct that is in “clear and unambiguous compliance” with state law, at least so long as other factors are not present (such as unlawful firearm use, or “for profit” commercial sales); and (4) no court opinion has held that the state law is invalid or unenforceable on federal preemption grounds.

In these circumstances, we decline to interpret and apply ER 1.2(d) in a manner that would prevent a lawyer who concludes that the client’s proposed conduct is in “clear and unambiguous compliance” with state law from assisting the client in connection with activities expressly authorized under state law, thereby depriving clients of the very legal advice and assistance that is needed to engage in the conduct that the state law expressly permits. The maintenance of an independent legal profession, and of its right to advocate for the interests of clients, is a bulwark of our system of government. History is replete with examples of lawyers who, through vigorous advocacy and at great personal and professional cost to themselves, obtained the vindication of constitutional or other rights long denied or withheld and which otherwise could not have been secured.

A state law now expressly permits certain conduct. Legal services are necessary or desirable to implement and bring to fruition that conduct expressly permitted under 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. Although the Act may be found to be preempted by federal law or otherwise invalid, as of this time there has been no such judicial determination.

Accordingly, we believe the following is a reasonable construction of ER 1.2(d)’s prohibitions in the unique circumstances presented by Arizona’s adoption of the Act:

CONCLUSION

Lawyers may ethically advise clients about [1]complying with the Arizona Medical Marijuana Act, including advising them about compliance with Arizona law, [2]assisting them to establish business entities, and [3]formally representing clients before a governmental agency regarding licensing and certification issues, but only in the [3]narrow circumstances set forth in this opinion and only if lawyers strictly adhere to those requirements.

(AZ Bar Opinion)
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wow. that's way too much to read just to find out wtf you're talking about can you summarize in 1 sentence what this thread is all about?

I assume you are posting this to inform people of the answer to the question in the subject line. but I'm not sure why, and it hasn't peaked my interest enough to make me want to read all that and try to interpret all the legal jargon into english

I was gonna read all that... but then I got high.....