After passage of SQ 788, ethical hurdles remain for lawyers

published in McAfee & Taft Legal Ethics Alert | July 3, 2018

By Michael Lauderdale and Robert T. Luttrell, III

Months prior to the vote on SQ 788, attorneys were fielding inquiries about the legal requirements necessary to participate in the medical marijuana industry. Those inquires have multiplied immensely since the passage of SQ 788 on June 26. However, attorneys providing advice in this area face certain ethical hurdles that will likely impede their involvement.

Marijuana is, for federal purposes, still a controlled substance. Federal law makes it a crime for any person to knowingly or intentionally manufacture, distribute or dispense a controlled substance. This prohibition likely covers almost everyone in the growing and distribution chain. It is also a crime under federal law to knowingly and intentionally rent, lease, profit from, or make available for use and place for the purpose of unlawfully manufacturing, storing, distributing or using marijuana. This provision covers landlords and other real property owners. Vendors, financiers and bankers can be covered as aiders and abettors or co-conspirators.

Obviously, these federal law provisions impact almost anyone directly or indirectly involved in the marijuana industry. While many individuals and businesses want legal assistance about how to conduct their operations, this request has created an ethical concern for attorneys, including in-house counsel. Currently, Rule 1.2(d) of the Oklahoma Rules of Professional Conduct provides, in part, that a “lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” Consequently, Oklahoma lawyers could face disciplinary issues for giving any advice or assistance about how to comply with SQ 788 since compliance with the new state law requires violating federal law. With the passage of both medical and recreational marijuana in numerous other states, many state bar associations have addressed this issue – either through amendment of Rule 1.2(d) or by issuing opinions – to allow attorneys to represent clients regarding their own states’ marijuana laws while also providing the appropriate advice regarding the federal law issues.

Until the Oklahoma Bar Association and the Oklahoma Supreme Court address this issue, businesses seeking legal advice related, directly or indirectly, to the manufacture, distribution or dispensing of marijuana may encounter difficulties retaining counsel.

This alert has been provided for clients and friends of McAfee & Taft A Professional Corporation. It does not provide legal advice, and is not intended to create a lawyer-client relationship. Readers should not act upon information in this alert without seeking professional counsel.

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