by Alison Leary
Last September, the Sacramento County Bar Association’s Public Law Section (PLS) co-hosted a lunch program with the Administrative and Environmental Law Sections regarding the medical cannabis regulations pending before the Bureau of Medical Cannabis Regulation at the California Department of Consumer Affairs and the Department of Food and Agriculture. During the program, the presenters fielded thought-provoking questions from attorneys wanting to know more about the ethical implications of advising clients on marijuana businesses given that marijuana remains a Schedule 1 drug under the Federal Controlled Substances Act.
As a follow up to that discussion, and in light of the recent passage of the Adult Use of Marijuana Act, PLS hosted a lunch program on May 23, 2017 entitled, “Marijuana and the Conflicts between State and Federal Law: Ethical and Practical Considerations.” The program included presentations by legal professionals representing the gamut of stakeholders in the marijuana industry, and offered key insight into the challenges facing practitioners in this field.
From the perspective of local government, Jonathan Hobbs, Elk Grove City Attorney, discussed whether it was possible to comply with both federal and state law. Hobbs explained, “There is currently a patchwork of federal, state, and local laws in the area of marijuana regulation. And, the laws are not necessarily consistent. A person acting pursuant to state or local law can run the real risk of violating federal law. This presents quite a challenge for public and private practitioners in advising their clients.” Hobbs went on to explore whether local government officials could face prosecution for aiding and abetting a violation of federal law in implementing local marijuana laws, and whether local governments are required to, or prohibited from, returning seized marijuana to its owner.
Representing the view from the judiciary, Sacramento Superior Court Presiding Judge Kevin Culhane described the ethical quandary that judicial officers might find themselves in if they were to engage in the sale or manufacture of marijuana. Judge Culhane explained that the California Supreme Court’s Committee on Judicial Ethics Opinions (CJEO) recently offered clarity for judicial officers in CJEO Formal Opinion 2017-010. In that opinion, the CJEO advised that, in order to uphold their explicit obligation to comply with the law, judicial officers should not have any interest in an enterprise that involves the sale or manufacture of medical or recreational marijuana.
Finally, Hanspeter Walter of Kronick Moskovitz Tiedemann & Girard delved into the emerging practice of representing members of the marijuana industry. Walter assessed whether the attorney-client privilege, which traditionally does not attach to communications between a lawyer and a client which would enable the client to commit a crime, applies to communications between attorneys and marijuana industry clients. He also identified the rules of professional conduct that attorneys must be aware of before advising clients in the marijuana industry.
Although there is more to come in this fast-changing area of the law, the presenters offered much needed resources for attorneys considering engaging in this potentially lucrative industry.