Lawyers seek guidance on pot clients

When attorney Dan Johns agreed to represent a New Jersey medical marijuana clinic in a labor dispute, he would soon realize he was confronting a hard choice.

Since outfits like Compassionate Care in Egg Harbor Township are doing business in an industry that’s technically illegal under federal law, is it ethical to represent them? Could there be professional repercussions, like being disbarred? 

These questions illustrate the hurdles lawyers face in deciding whether to represent someone who participates in the burgeoning medical marijuana industry. About half the states have passed laws legalizing medical marijuana in some form, and since New Jersey legalized it in 2010, the ethical waters for attorneys remain choppy.

Johns, who declined to be interviewed for this story, is now asking the National Labor Relations Board to give him more time to reply to a labor complaint while he asks the state’s attorney ethics officials if representing the pot clinic could get him into professional trouble.

Tammy Kendig with New Jersey’s Advisory Committee on Professional Ethics said the medical marijuana issue has not yet been considered. But she was quick to point to a line in the professional conduct handbook, which states that: “a lawyer shall not counsel or assist a client in conduct that the lawyer knows is illegal, criminal or fraudulent.”

Even though the Obama administration has effectively lifted the ban on medical marijuana by defunding drug raids of dispensary operations, the federal government still puts pot in the same drug category as heroin, LCD and ecstasy. The Controlled Substance Act of 1970 created the categories.

New Jersey Attorney J. Ferrelli is seeking to clarify the issue for state’s legal community. He’s now putting together a committee with New Jersey’s Bar Association and tasking them to come up with a proposed ethics rule for the state’s Supreme Court to consider.

“You have a lawyer saying, ‘geez, I’m putting my license at issue here and the fact that it’s lawful in the state doesn’t necessarily get me off the hook,'” Ferrelli said. “Until we get some clarification on this issue, there are going to be a lot of lawyers who decline to represent those types of clients and there will be some lawyers that say, ‘I’m going to do this because that’s what I’m here for, and if push comes to shove and I get cited for a violation, I’m going to fight it.'”

But Larry Fox, a Philadelphia lawyer who teaches courses on professional responsibility at Yale University, said until the federal government takes action, attorneys who take on clients in the pot industry will not be beyond reproach.

“Obviously helping them incorporate, helping them rent space, or helping them enter into contracts all looks like aiding and abetting,” Fox said. “If it was bank robbery, or credit card identity theft, we would say the lawyer would clearly be disbarred for engaging in that.”

He said the question at the heart of the dilemma is: “Are they entitled to due process as long as what they’re doing is illegal under the law of the land?”

To be sure, being disbarred is a thorough process. It would require someone filing a disciplinary charge to the ethics committee. From there, an investigation would take place and an action, like a public admonishment or stripping away a law license would be recommended. All disciplinary actions require the state Supreme Court’s blessing.

Even more than professional shame, Ferrelli said he worries that the representation could make an attorney vulnerable to criminal prosecution.

“Theoretically, you could have a criminal conspiracy charge involving the lawyer who’s just doing what lawyers do all the time, which is just give a client guidance on how to follow the law,” Ferrelli said. “It’s really a mess.”