In 1971, folk-rock duo Brewer & Shipley released their pot smoking anthem “One Toke Over the Line.” Although they wrote it as a joke, it ended up being their most (ok, only) commercially successful hit. The song’s success peaked after VP Spiro Agnew publicly denounced it as subversive propaganda that “threatens to sap our national strength.”
At least one person missed Agnew’s missive: bandleader Lawrence Welk. Apparently unfamiliar with the word “toke,” Welk mistakenly thought the song was a “modern spiritual” (his words). Days after Agnew’s statement, Welk featured it on his anything-but-subversive show, performed by the squeaky clean Gail Farrell and Dick Dale.
Welk’s accidental foray into the drug culture of the early ’70s is little more than a footnote to his oeuvre of polkas, show tunes and pop standards; it certainly didn’t tarnish his image. But lawyers can’t afford to be confused about the subtleties of state and federal cannabis laws (even if they are unlikely to confuse Brewer & Shipley with Gail & Dale).
ABA Model Rule 1.2(d) forbids a lawyer from counseling a client “to engage, or assist a client, in conduct that the lawyer knows is criminal.” While most (but not all) states now permit some form of marijuana use, it remains a Schedule I controlled substance under federal law and the possession, sale, distribution or use of cannabis is a federal crime. On its face, Rule 1.2(d) does not distinguish between conduct that is both expressly legal under state law and expressly illegal under federal law (notwithstanding the Justice Department’s current policy not prosecute such crimes in states with regulated cannabis programs). Not surprisingly, there is no nationwide consensus on the extent to which lawyers can ethically advise clients in the cannabis industry without running afoul of this seemingly common sense rule.
Authorities that have weighed in on the issue generally agree that advising as to the validity, scope, meaning or application of the state laws permitting the cultivation, distribution and use of marijuana is okay. But some suggest that attorneys cannot counsel a client to engage in the cannabis business or assist a client in doing so, even where it is legal under state law. Add to the mix the challenges faced by lawyers who are admitted both in jurisdictions that permit some form of cannabis and in those that prohibit it.
While the existing guidance is at best uncertain and at times contradictory, what is universal is the recognition that representations in this space involve some degree of risk. Even if the client’s activities or proposed activities fully comply with state law requirements in the jurisdiction at issue, there are limits as to what a lawyer admitted to practice there can ethically advise on. So before seeking to represent a client in this space, it is imperative to understand and carefully evaluate the risks involved, federal enforcement policy and applicable federal, state, and local laws and regulations. Get down in the weeds, so to speak.