Can A Corporate Lawyer Represent Those Who Grow Medical Marijuana?

Mandatory Sentencing for Medical Marijuana – NYTimes.com.

This is a New York Times story on the prosecution of a family growing marijuana. They claim the marijuana is for medical purposes. The feds disagree. In the end, a jury will decide the fate of these people.

This case raises an ethical question for lawyers. Let’s say you are a lawyer in Colorado or Washington state. Someone comes in to the office and proposes a new company to sell medical marijuana. You form an entity. You write an operating agreement and you assist the client in setting up what appears to be a lawful business. Also, assume your clients obtain a state license and comply with all of the laws of their state.

The problem with all of this is that you have almost certainly violated the federal criminal drug laws. This means that you can be prosecuted for conspiracy, drug distribution and aiding and abetting the violation of the federal drug laws.That you complied with state law is no defense because of the federal Supremacy Clause.

Until this issue is clarified further by the Justice Department, lawyers would be well-advised to think long and hard about doing routine business law legal work for those who are in the medical marijuana business. Lawyers are easy targets for prosecution because they are supposed to know the law and understand things like the Supremacy Clause of the Constitution.

Edward X. Clinton, Jr.