LEGAL ETHICS OF POT ADVICE HAZY

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 said it is 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 individuals 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 pointed out it remains illegal under federal law to sell or
possess marijuana.

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

Her preliminary opinion is not based on conjecture of what the Arizona
ethics rules require.

Maine Rules Studied

She noted 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 marijuana law.

That opinion specifically says that attorneys, while allowed to
provide advice on the law, are not permitted to help their clients
break it. The fact that the federal government is not 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 could not say when. She
acknowledged, though, 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 one of the limited number of state licenses to
operate a dispensary.

Denied Dispensaries Might Sue

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 now to 125.

Humble said he is 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."

And what of someone who needs an attorney to go to
court?

"That's the question we're looking at," she said. "At what point do
you cross the line?"

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 that needs to be carefully evaluated."

California and Colorado, Too

What attorneys do in California, which has one of the oldest medical
marijuana laws in the nation, is of little guidance. That state's
ethics rules differ from Arizona and, in fact, from most of the rest
of the nation.

The rules in Colorado, however, where a medical marijuana law was
approved in 2000, are identical to Arizona.

There has been no formal opinion from that state's bar on the issue.
But an article written earlier this year for a Colorado Bar
Association newsletter on the issue of helping companies set up
marijuana distribution businesses, which are legal under that state's
laws, provides no more guidance on the issue than the Maine opinion.

"Lawyers who assist medical marijuana dispensaries may well violate
(the ethical rule) and should not delude themselves by indulging fine
distinctions over the degree of their assistance or knowledge of a
client's criminal conduct," wrote attorney Alec Rothrock. "The risk of
violation is high and cannot be eliminated."

But Rothrock said that, at least in Colorado, the chances of the state
bar investigating an attorney -- and, specifically, imposing a
significant penalty -- is probably minimal.

"The real issue that Colorado lawyers should ponder is not
disciplinary prosecution but ethical purity," he wrote.

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.