Lawyers In Az Get Word On Legal Pot Sales: Don't Help

[Michael Komorn]

Lawyers in AZ get word on legal pot sales: Don't help

 

There is something inherently wrong here. When you start regulating speech between lawyer and client (like Dr. and patient) you are making a recipe for disaster. So far despite some of the insanity in Michigan, we have not gotten this extreme.

 

Howard Fischer Capitol Media Services | Posted: Monday, November 29, 2010 12:00 am

 

PHOENIX - Patients, doctors and dispensaries seeking legal help navigating the state's new medical-marijuana law could find themselves up the creek without a lawyer.

The ethics counsel for the State Bar of Arizona says it's a violation of the rules laid out by the Arizona Supreme Court for attorneys to help clients break the law.

 

Patricia Sallen acknowledged that the new medical-marijuana law permits those with a doctor's recommendation to obtain up to 2 1/2 ounces of marijuana every two weeks. And it also sets up procedures for the state to license nonprofit corporations to sell the drug.

But she said it remains illegal under federal law to sell or possess marijuana.

 

Sallen said that could keep attorneys from helping Arizona corporations set up dispensaries. And it also could mean no help in going to court for any company that believes it was unfairly or unlawfully denied a dispensary license - or even for an individual who wants legal assistance in obtaining a medical-marijuana card.

 

Other states have dealt with the same issue already, Sallen said.

 

She noted that the Maine Board of Overseers of the Bar, that state's counterpart to her organization, issued a formal opinion earlier this year after Maine adopted its own medical-pot law.

 

That opinion specifically says that attorneys, while allowed to provide advice on the law, aren't permitted to help their clients break it. The fact that the federal government isn't enforcing its own anti-drug laws against those complying with state medical marijuana statutes, the Maine opinion says, is irrelevant.

 

And the ethical rules that regulate Maine attorneys are virtually identical to the ones by which Arizona lawyers must live.

 

Sallen said a formal opinion for Arizona lawyers will be coming from her office on the issue, though she couldn't say when. She acknowledged, though, that an opinion warning attorneys to avoid these cases could leave Arizonans without legal help they need.

Some of the first questions may come from those needing assistance to incorporate a firm to set up a marijuana dispensary.

 

But the need for an attorney may become more acute as some of these companies are denied the limited number of state licenses to operate a dispensary.

Under the terms of Proposition 203, the state can issue permits equal to 10 percent of the number of pharmacies in Arizona. State Health Director Will Humble said that comes out to 125 licenses.

 

Humble said he's likely to award the licenses based on an examination of each applicant's qualifications. That, in turn, opens the door for appeals - and lawsuits - by anyone not on the final list.

 

"A lawyer may discuss the legal consequences of any proposed course of conduct," Sallen said. "Otherwise, how could you find out what is legal and illegal to do?"

 

But Sallen said the rules also make it clear that attorneys cannot counsel a client to "engage in conduct a lawyer knows is criminal or fraudulent."

 

Sallen said the formal opinion from Maine doesn't provide much guidance on what attorneys may and may not do. In fact, the Maine board specifically dodged the issue.

 

"Where the line is drawn between permitted and forbidden activities needs to be evaluated on a case by case basis," that formal opinion reads.

 

"We cannot determine which specific actions would run afoul of the ethical rules," it continues. "We can, however, state that participation in this endeavor by an attorney involves a significant degree of risk which needs to be carefully evaluated."

 

Arizona Rules of Supreme Court 42(d)

 

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good-faith effort to determine the validity, scope, meaning or application of the law.

 

Michael A. Komorn

Attorney and Counselor

Law Office of Michael A. Komorn

3000 Town Center, Suite, 1800

Southfield, MI 48075

800-656-3557 (Toll Free)

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248-351-2211 (Fax)

Email: michael@komornlaw.com

Website: www.komornlaw.com

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[welj31]

WTF there goes "equal protection under the law".

[Homes Labs]

I was just thinking the same thing.

[Mememe]

Just some scare tactics. Could be good news for MI attorneys wanting to do business in 2 states.