16 August 2016

The Santa Fe New Mexican writes…

The Ethics Advisory Committee took up the issue when a lawyer anonymously asked whether a New Mexico attorney could comply with the state’s codes of conduct while representing nonprofit producers, couriers and manufacturers licensed under the New Mexico Department of Health’s medical cannabis program.

The committee seemed to say both both yes and no.

“At one end of the spectrum, the committee is in general agreement that negotiating contracts for the purchase of cannabis would be directly assisting the client to engage in a criminal activity,” the opinion said. “At the other end of the spectrum, some committee members opined that forming a general alternative medical business, which could possibly include the prescribing and distributing of medical cannabis would not be such assistance.”

Attorneys may represent nonprofit organizations involved in producing or distributing marijuana, the committee concluded, but cautioned lawyers “may not counsel or ‘assist’ a client to commit a crime.”

“I think it’s still a gray area,” said Joe Conte, executive director of New Mexico Bar Association.

Lawyers’ groups in several other states have taken up the same question but reached conflicting conclusions.

The Illinois State Bar Association, for example, determined it would be reasonable for lawyers to provide businesses in the marijuana industry the same services they provide other clients.

The State Bar of Arizona justified lawyers representing clients in the marijuana industry by noting the federal government has provided something of a safe harbor from prosecution for growers and dispensaries licensed by state authorities. Arizona’s bar association also noted courts have not ruled on whether the state’s marijuana laws are pre-empted by federal regulations.

But the New Mexico State Bar Association’s Ethics Advisory Committee hewed to a stricter reading of this state’s code of conduct, rejecting what it described as “value judgments” based on the current attitudes of federal officials.

William Slease, chief counsel of the New Mexico Supreme Court Disciplinary Board, said the issue is “not a prevalent problem.” Slease said he is not aware of any public disciplinary actions against lawyers due to their work with clients involved in producing or distributing medical cannabis.