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.
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.
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 a much guidance of 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 which needs to be carefully evaluated.’’
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 a 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.
KMA367 posted at 6:46 am on Sun, Nov 28, 2010.
Howard needs to revisit his journalism training.
Who is Patricia Sallen? "Her preliminary opinion is not based on conjecture of what the Arizona ethics rules require." What?
"Patricia Sallen acknowledged that the new medical marijuana law permits individuals with a doctor’s ............" That's nice she acknowledged it?
I think Howard must have been smoking something when he wrote this fragmented article
malcolmkyle posted at 7:04 am on Sun, Nov 28, 2010.
If you support prohibition then you are NOT a conservative.
Conservative principles, quite clearly, ARE:
1) Limited, locally controlled government.
2) Individual liberty coupled with personal responsibility.
3) Free enterprise.
4) A strong national defense.
5) Fiscal responsibility.
Prohibition is actually an authoritarian War on the Constitution and all civic institutions of our great nation.
It's all about the market and cost/benefit analysis. Whether any particular drug is good, bad, or otherwise is irrelevant! As long as there is demand for any mind altering substance, there will be supply; the end! The only affect prohibiting it has is to drive the price up, increase the costs and profits, and where there is illegal profit to be made criminals and terrorists thrive.
The cost of criminalizing citizens who are using substances no more harmful than similar things that are perfectly legal like alcohol and tobacco, is not only hypocritical and futile, but also simply not worth the incredible damage it does.
Afghani farmers produce approx. 93% of the world's opium which is then, mostly, refined into street heroin then smuggled throughout Eastern and Western Europe.
Both the Taliban and the terrorists of al Qaeda derive their main income from the prohibition-inflated value of this very easily grown crop, which means that Prohibition is the "Goose that laid the golden egg" and the lifeblood of terrorists as well as drug cartels. Only those opposed, or willing to ignore this fact, want things the way they are.
See: How opium profits the Taliban: http://tinyurl.com/37mr86k
or: A GLOBAL OVERVIEW OF NARCOTICS-FUNDED TERRORIST GROUPS
http://www.loc.gov/rr/frd/pdf-files/NarcsFundedTerrs_Extrems.pdf
Prohibition provides America's sworn enemies with financial "aid" and tactical "comforts". The Constitution of the United States of America defines treason as:
"Article III / Section 3. Treason against the United States, shall consist only in levying war against them, or adhering to their enemies, giving them aid and comfort."
Support for prohibition is therefor an act of treason against the Constitution, and a dire threat to the nation's civic institutions.
The Founding Fathers were not social conservatives who believed that citizens should be subordinate to any particular narrow religious moral order. That is what the whole concept of unalienable individual rights means, and sumptuary laws, especially in the form of prohibition, were something they continually warned about.
It is way past time for us all to wise up and help curtail the dangerous expansions of federal police powers, the encroachments on individual liberties, and the increasing government expenditure devoted to enforcing the unworkable and dangerous policy of drug prohibition.
To support prohibition you have to be either a socialist, ignorant, stupid, brainwashed, insane or corrupt.
* The US national debt has increased at an average rate of $3,000,000000 per day since 2006. http://www.usdebtclock.org/
* The unemployment rate has increased by 7300 per day since 2008.
* The loss of manufacturing jobs has been 1400 per day since 2006.
* Without the legalized regulation of opium products Afghanistan will continue to be a bottomless pit in which to throw countless billions of tax dollars and wasted American lives.
* The hopeless situation in Afghanistan is helping to destabilize it's neighbor, Pakistan, which is a country with nuclear weapons.
* The mayhem in Mexico has deteriorated so badly that it’s bordering on farcical.
There is nothing conservative about prohibition, which enlists the most centralized state power in displacement of domestic and community roles. There is everything authoritarian and subversive about this policy which has incinerated American traditions such as Freedom and Federalism with its puritanical flames. Any person seeking to insure and not further compromise the safety of their family and of their neighbors must not only repudiate prohibition but help spearhead its abolition.
We will always have adults who are too immature to responsibly deal with tobacco alcohol, heroin amphetamines, cocaine, various prescription drugs and even food. Our answer to them should always be: "Get a Nanny, and stop turning the government into one for the rest of us!"
rrffcc1 posted at 8:41 am on Sun, Nov 28, 2010.
Oh PUHLEEZE......!
Be careful - using the term "ethical purity" in a sentence describing lawyers risks creating one of those viral lawyer jokes that never goes away.
There are one h*ll of a lot of lawyers out there working for and actively advising criminal bosses, drug dealers and - naturally - Republicans. In all of those instances many many laws are being violated on virtually a minute-by-minute basis and I'll bet there are few ethical twinges.
This is about the Bar and others in state government being irked that the PEOPLE (you remember them - the ones who pay the bills, your bosses) got this law passed and they don't like it. They don't like it because there's FAR more money to be made from the illegal side of things.
It's your own fault, you know. You let 'way too many lawyers graduate, and there are only so many ambulances...
Rich posted at 9:14 am on Sun, Nov 28, 2010.
There is a lot to be said for the theory that the legal and not the medical profession should be socialized.
Carolyn posted at 9:17 am on Sun, Nov 28, 2010.
Marijuana should be legalized for ALL purposes, AT THE NATIONAL LEVEL (to HELL with States' Rights, a particularly nasty issue left over from the good ol' southern boys' wishes after the Civil War in an attempt to keep slavery legal), and we wouldn't have this nonsense. LEGALIZE IT! Bring marijuana revenue HERE, and hit HARD the Mexican Cartels' revenue from selling it to people who want it and will find a way to get it.
mlimberg posted at 10:11 am on Sun, Nov 28, 2010.
Personel Injury Lawyers will be very busy. Pot stays in the system and detectable for 24+ hours. Pot heads smoke daily. Every auto accident will become a PI injury since the driver some drivers will test positive for Pot and DUI..... This whole law will be very bad for potheads.
DeFace posted at 10:57 am on Sun, Nov 28, 2010.
The rules are in regards to state law. Are you telling me no lawyers help setup the Brownie Beware law? None will defend it or the state if a lawsuit arises? You cannot have your cake and eat it too. Arizona prides itself on not cottoning to Federal influence and I have a hard time believing that in other cases where state and federal laws are at odds there are no AZ lawyers working the state's position. This is just some organization trying to subvert the voter's will and I hope someone files legal action against it.
az2008 posted at 12:41 pm on Sun, Nov 28, 2010.
I think mlimberg hit the nail on the head. We've always had an ambiguous "under the influence" standard. Someone could drink a couple beers and be "impaired." But, if they took a couple allergy pills, there was no easy way to detect that.
We're going to see more emphasis on field sobriety tests. Not merely whether it's in your system.
Also, until now, law enforcement could merely smell weed and have the right to search a person, vehicle or residence. Now it will be more of a fishing exercise. They'll have to ask for a prescription. More chance they'll waste their time pursuing it.
I think all this will lead to total legalization (selling the stuff at Circle-K with lots of tax on it. Cracking down on untaxed distribution channels the same way we do with "moonshine" and black-market tobacco.). That would be fine with me. I think that would be more coherent than prohibition, or the kind of semi-legal system we've entered.
mmjconsulting posted at 3:38 pm on Sun, Nov 28, 2010.
Unfortunate....extremely unfortunate.....This is going to effectively "thin the herd" of dispensary license applications. We at MMJ Consulting Arizona are pressing ahead in securing licenses for our clients, we utilize the services of out of state attornies.
http://mmjconsulting.wordpress.com/
TheBigCannabisLie posted at 4:29 pm on Sun, Nov 28, 2010.
Nazis, child molesters, rapists and murderers all have a right to counsel, but people hiring an attorney to help them comply with state laws may not be allowed access to legal counsel.
HUH?
I think this a very dangerous, ridiculously slippery slope, and Sallen is obviously trying to do whatever she can to undermine her new state law.
And then there's the Tenth Amendment to the U.S. Constitution, which is clear that issues not enumerated by U.S. Constitution, like health and medical issues, are left for the states to decide.
There has to be something Sallen could be doing, except for trying to block legal access to attorneys. This is outrageous and almost unbelievable.
How scary.
Rich posted at 6:08 pm on Sun, Nov 28, 2010.
This is about the best thing I ever read about "rules":
"A ball exists in a state of perfect symmetry. This fact tends to both obscure and dominate their view of existence. For example, a ball will not willingly engage in anything outside of what is known as a game. It needs, demands, framework, substance, rules. Thus, though the game itself might represent a certain height of meaningless frivolity, the set rules and regulations under which it is played betoken a serious nature given to few other pursuits. While a businessman might acquire a certain polish, and sneaking admiration, by cutting corners, in effect cheating, one who plays games will be ostracized for applying these techniques from the running back slot. Thus, even a ball that admits to a simple bilateral symmetry, such as a football, is imbued with a rigid, puritanical view of existence in general.
This, of course, causes them to be used in unreal, naive activities, as they are useless for purposes of reality in any practical sense.
Take, for example, a baseball. Of what use is it in building a house, farming a piece of land or sewing a dress? It has no truck with the basics, because it cannot deal with the immoral nature demanded of such mundane pursuits. There are loftier goals to be pursued: victory, and defeat, striving when hope is gone, and the inevitable judgment in the great book of Heaven on how the game was played.
Looking at it plainly, it is an undersized spheroid designed to be thrown between two players while fifteen others watch, hoping to become involved should the eighteenth player, ie: the one who is neither watching nor playing catch, happen to be lucky enough to hit it with a club and involve seven of the fifteen watching the game by forcing them to do something other than watch. This can result in as many as four of them touching the ball before the game of catch resumes. In other words, a baseball is but an adjunct to appearing to do something when there is actually nothing of substance to do.
With the advent of civilization, a void was created in the area of young members of the society of the male persuasion. They were unable to follow their fathers on the hunt. It was tried and, for a while, young male humans were a staple of the cave bear diet. Young female humans could easily follow their mothers, gathering, cooking, keeping the cave clean, and generally be instructed in the duties they would be expected to perform in later life. The boys, however, were left underfoot, disrupting routine, and generally becoming pests. This began the evolution of what is known as "game". Because they were unable to hunt real game, fathers invented, for their sons, various useless, senseless and ridiculous activities and called them "games."
It is to be supposed that the original games were intended to teach the art and science of hunting to progeny. But, as hunting consists, in main, of finding something and killing it, training regimens, even disguised as fun, tended to be little better, in the area of preserving the succeeding generation, than feeding them to cave bears. Thus, the evolution of games, in general, leads away from anything that might be termed practical.
Because nature lends no helping hand in limiting games, alternate, artificial means of regulating them had to be invented, thus games are circumscribed by what is known as "rules." So it is that carrying a tommy gun onto a football field, which would indeed be the most efficient way in which to score, is not allowed.
As games developed, succeeding generations began to see the use of "rules" in general to force people into all manner of ridiculous, inane, and senseless activity. This is how the politician was born on the playing fields of the Neolithic." Dorian Taylor, Yard Sale in http://www.amazon.com/dp/B00295RCHS
CEmilyPlay posted at 6:40 pm on Sun, Nov 28, 2010.
First of all, you should really know what you're talking about before you start shooting your mouth off. Especially you mlimberg.
Marijuana can stay in your system for up to 30 days. And last I checked, this new law is not for "potheads". It's for medically necessary marijuana to aid with certain diseases and conditions. And if you think so poorly of "potheads", then why do you care that the law will "be bad" for them?
Did you know that a recent study proved that alcohol is more dangerous and addictive than heroin?? By you saying that every accident will end up being a "DUI" because of marijuana is exactly like saying every accident in the state of Arizona is caused by alcohol.
You are making way too many generalizations and you really need to do some research before you comment because you really have no idea what you're talking about.
Rich posted at 7:45 pm on Sun, Nov 28, 2010.
Actually Emily, if you read stats closely and pay attention an "alcohol related" traffic fatality could come about because one party to the accident went to the grocery store and was bringing home a six pack. It's like feeling you up at the airport. Useless, stupid and sick, but designed to keep you in fear and them in control. The only purpose of this is to fill their pockets. And yes, 'traffic fatalities' involving marijuana (his sister has cancer and gets it) are about to take wing.
MsMimi posted at 8:19 pm on Sun, Nov 28, 2010.
First of all I am very confused by who Sallen is, I do not think her qualifications were anywhere in the article. A good journalist should always document their professional sources, and titles.This article talks about federal law and state law which are not the same. Don't attorney's follow the laws of the state in which they are authorized to practice in? On Nov 30, 2010 the AZ Medical Marijuana Act will become law which makes medical cannabis legal, so I do not see how AZ Supreme Court rule 42 (d) applies. The state of AZ Bar Association cannot penalize an attorney for assisting clients in a legal business. I find this article pretty pointless and just furthering the fear mongering, or am I missing something here?
TruthSeeker posted at 9:07 pm on Sun, Nov 28, 2010.
". . . 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."
Does this mean that if some pharmacies close down like Osco did several years ago that the medical marijuana pharmacies have to close down a proportionate number of their locations as well?
Poorman posted at 8:26 am on Mon, Nov 29, 2010.
The lawyers probably figured out they can make more money by defending the shops,when and if they get into trouble.Wouldn't be easy for them to do if they set the shop up in the first place. Then there is the thing they call rules and ehtics you know. If there is away to make more money the lawyers will figure out how,you can bet on that.
Duncan20903 posted at 2:53 pm on Tue, Dec 7, 2010.
The first thing we need to do is to kill all the lawyers.
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