The Oxymoron of Ethical Cannabis Lawyering: Advising Clients on Breaking the Law Without Violating Ethical Rules

Abstract

Cannabis companies in the United States operate in a shadowed area of the law where state and federal laws frequently change and often conflict. Cannabis attorneys, who advise cannabis companies in ways similar to other corporate attorneys, must also traverse this grey space. For cannabis attorneys, it is critical to discern whether an action taken by the attorney in furtherance of the cannabis company’s business runs afoul of the rules of professional conduct, which govern attorneys in the United States. Until cannabis is reclassified under the Controlled Substances Act or Congress passes legislation immunizing cannabis attorneys, there will always be some level of risk inherent in an attorney’s representation of cannabis clients. Until this time comes, attorneys should protect themselves by adopting procedures to define the scope of representation, monitoring clients’ business affairs, reevaluating the nature of representation as laws change, and informing clients about conflicts, risks, and implications of operating a cannabis company, and carefully documenting these warnings.

Keywords: Cannabis attorneys, ethical rules, marijuana law, model rules of professional conduct, ethical sanctions, and corporate cannabis