Monday, October 27, 2014

ND State Bar opinion finds use of medicinal marijuana is a violation of the rules of conduct even if the use is legal according to state law

Legal Ethics in Motion is reporting on an interesting Advisory Opinion issued a couple of months ago by the Ethics Committee of the State Bar Association of North Dakota that concludes that a lawyer licensed in North Dakota who uses medical marijuana in a state that authorizes its use, violates North Dakota Rule of Professional Conduct Rule 8.4(b).  You can read the short opinion  here.  (Opinion 14-02, issued August 12, 2014)

I don't agree with the opinion.  Rule 8.4 provides that “[i]t is professional misconduct for a lawyer to…commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects[.]”  Why does this rule apply if the lawyer is participating in a legal activity?  And even if it is illegal, how does using marijuana for medicinal purposes reflect adversely on a person's honesty or fitness?  It is one thing to say that a lawyer is unfit because he or she is suffering from a the medical issue that is so debilitating it prevents the lawyer from meeting his or her duties, but that is not what the opinion says.

The basis for the conclusion is that the use of medicinal marijuana has not been legalized by federal law.  Based on this reasoning, a lawyer (indeed, anyone at all) who uses medicinal marijuana even in a state where it is legal to do so, could be found to be in violation of federal law.  And, due to that possibility, a lawyer should not engage is conduct that is potentially a violation of federal law.

I understand the logic, but I am still not convinced, particularly since I am not convinced that the "crime" is the type of crime, by itself, that reflects adversely on honesty or fitness.  According to the Committee's logic all crimes reflect adversely which makes the language of the rule superfluous.