I was the keynote speaker at the US Virgin Islands bar association meeting a few weeks ago. My talk was on online defamation, and a challenge to the USVI to pass an Anti-SLAPP law. But, the conference itself was quite heavy on the discussion of marijuana decriminalization — in particular, the ethics of advising clients on marijuana issues.
The USVI, along with 20 states have decriminalized small amounts of marijuana. In addition, we have medical marijuana in 23 states. (source)
But, as most know, the federal government remains entrenched in its position that marijuana is illegal, dangerous, and scary. Nevertheless, the Department of Justice released a memorandum in October 2009 stating that although medicinal use of marijuana was in violation of federal law, law enforcement officials would not specifically target those “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” Ogden, David, Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana, THE DEPARTMENT OF JUSTICE, (Oct. 19, 2009) (source).
Against this backdrop, we had a discussion in the Virgin Islands as to where the ethical boundaries for lawyers might lie — was it ok to advise clients who wanted to operate marijuana grow operations, dispensaries, and the like — if the state or territory legalized weed, but the feds maintained their position? And, what about lawyers using marijuana? Is that a no-no?
Most states that have legalized marijuana are trending toward letting lawyers give advice to their clients. This usually comes with a caveat that the lawyer has to inform the client that just because they are compliant with state law, the feds are still out there. See, e.g., Ariz. State Bar Op. 11-01 (Feb. 2011); Maine State Bar Op. #199 (July 7, 2010). Both of these early opinions state that when a client is made aware of the possible federal consequences of his or her actions, the attorney has acted ethically in giving advice.
As far as using weed goes, ABA Model Rule 8.4(b), states that it is professional misconduct for a lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Colorado says that a lawyer using marijuana does not necessarily violate that rule. See Colorado Formal Opinion 124, “A Lawyer’s Medical Use of Marijuana” (2012). Colorado said that a lawyer’s personal use of medical marijuana standing alone, was permissible. On the other hand, Louisiana (for example) takes the opposite view. See In re Stolzle, 130 So. 3d 801, 802 (La. 2013) (but that lawyer committed other misconduct leading to disbarment).
While we were discussing this, one long-time member of the bar finally exploded. He said “I can not believe what I am hearing here!” His position was that marijuana is illegal under federal law, we are sworn to uphold the law, the federal government is supreme over state or territorial governments, therefore we are behaving unethically if we use marijuana, or if we advise a client beyond telling them “you are breaking the law” in such a circumstance. His central position was that the Bar should work to uphold the law, as it stands, and not as it might wish it were.
And his position is not without merit.
How do you reconcile being an officer of the court with a) violating federal law, or b) advising a client on conduct that clearly violates federal law?
I’m not talking about legal ethics or law here – there are far more competent authors than I who have opined on it. I’m more haunted by this lawyer’s position that the bar should be the instrument of the government. What about justice? What about showing leadership?
Lets consider an extreme, if silly, hypothetical: Lets say that it is the year 2022. President Palin and Vice President Duke sign a law passed by a majority Tea Party Congress that all Americans who refuse to profess their love for Jesus Christ shall be rounded up and forced to live in detention camps, where they will be forced to work in slave labor conditions, where there is a 90% mortality rate. The expected legal challenge comes, and despite the law being declared unconstitutional at the District and Court of Appeals, the Supreme Court gives us a shocker – Chief Justice Scalia, in a 7-4 opinion (Palin also added two seats to the USSC) rules that despite the law being subject to strict scrutiny, it passes muster because there is a compelling governmental interest in a society that follows one religion, the founders would not have found this to be all that weird, and besides, terrorism.(1)
So now we have a seriously fucked up situation.
As they round up the first crop of Jews, Muslims, and Atheists, some lawyers help (illegally) smuggle some dissenters out of the country. Others advise their clients to practice their own religion secretly, and help them to get counterfeit Jesus Cards, so they won’t be sent to the camps.
These lawyers have broken the law, but did they behave unethically? In such a silly hypothetical, it seems pretty obvious what any human being, lawyer or not, should do in that situation. They should resist, and they should assist in breaking that law. No principled person could do otherwise.
Now, isn’t it just a bit beyond crazy to compare marijuana users to concentration camp victims? Sure it is. But, lets look at this issue in a broader context — the war on drugs. What a stupid name, first of all — because it is not a war on drugs at all — it is a war on people who use drugs. When you consider the harm that this silly plant has caused from the beginning of time until the end of this post, I can’t see it coming close to the harm that this “war” has caused.
Before the war on drugs, we had a Fourth, Fifth, and Sixth Amendment — all of which were trashed in the name of this “war.” We now have the highest incarceration rate in the world. And, for every New York cop pissing and moaning about De Blasio should instead complain about the fact that they’ve been turned into a militarized occupying army. When that happens, you can expect that someone is going to act like a resistance does — knocking off some of the soldiers occupying your country.
When you consider that, how can anyone say that it is “unethical” to be part of the resistance against America’s absurd, unjust, and self-destructive war against its own people?
I am not saying that lawyers should just go ahead and break any law they want to. Not at all. This is not about individual lawyers — it is about the Bar taking a more active role in deciding, for itself, what laws are “ethical” and “unethical.” We still may be bound by the government to obey certain laws, but the Bar has no compulsion to discipline lawyers who declare their resistance to them. The Bar has no obligation to blindly support the laws that Congress passes.
Who better to judge a law than the Bar? I’m not suggesting that the Bar should have veto power. In fact, its leadership is just one minor baby step beyond being merely symbolic. Nevertheless, why should it not engage in such quasi-symbolism? Why not take a stand on laws that are truly irrational and/or harmful, or are themselves, unethical? Why not express will where politicians lack it? I find nothing wrong with a lawyer being arrested for having 10 pounds of pot in his trunk, but the Bar stating that it will not discipline him, since he has done nothing unethical. Or, hell, if the Bar decides that the marijuana laws are worthy of being upheld, then deal with it or turn in your law license, Smokey McDopehead. But take a fuckin’ stand.
Maybe it is time that the Bar shows this important leadership. Show the leadership to say that this chickenshit war on the people might be the government’s prerogative, and we might have to operate in a country where a few pricks can conduct a war on the people for god-knows-why. But, I think it would be a beautiful day when a lawyer goes to jail for possession of marijuana, meanwhile, the Bar says “we decline to discipline you, because the fuckers who arrested you are the unethical ones — not you.”
Ain’t gonna happen… but a man can dream.
(1) Don’t laugh. In Timmons v. Twin Cities Area New Party, 520 U.S. 351, 367 (U.S. 1997) Rehnquist authored an opinion banning “fusion parties,” despite their clear First Amendment protection on the grounds that protecting the two-party system from competition was a compelling state interest. “The Constitution permits the Minnesota Legislature to decide that political stability is best served through a healthy two-party system.” Id. In that opinion, he cited Rutan v. Republican Party of Ill., 497 U.S. 62, 107 (1990) (SCALIA, J., dissenting) (“The stabilizing effects of such a [two-party] system are obvious”).