Medical Marijuana Alert: Louisiana Office of Disciplinary Counsel Provides Guidance to Louisiana Attorneys

On May 19, 2016, Governor John Bel Edwards signed Senate Bill 271 into law, amending and reenacting La. R.S. § 40:1046, and providing for a comprehensive, working medical marijuana program in Louisiana (the "Act").  Since then, Louisiana attorneys have been afforded little guidance regarding their ability to provide counsel in connection with the Act.  Accordingly, on April 10, 2017, W. Scott Keaty and Joshua G. McDiarmid, two attorneys with our office,  transmitted a letter to Richard C. Stanley, Chairman of the Louisiana State Bar Committee on the Rules of Professional Conduct (the "Committee"), urging that the Committee provide such guidance.

On May 15, 2016, our office received a letter from Charles B. Plattsmier ("Mr. Plattsmier"), Chief Disciplinary Counsel for the Office of the Disciplinary Counsel, advising:

"It is my judgment that an appropriate course for this office to take is to acknowledge that Louisiana lawyers have a right and a duty to provide legal advice to clients on how best to comply with state law on the topic of medicinal marijuana. In all instances, the lawyer has a concomitant obligation to advise the client of the facial conflict which exists between Louisiana’s medicinal marijuana law and federal law on the subject. Lawyers who, in good faith, attempt to provide legitimate legal advice and counsel on how best to comply with Louisiana’s medicinal marijuana laws as passed by our state legislature should be permitted to do so. Because the facts and circumstances of every case can differ, however, I do not believe that it is prudent to suggest that a violation of Rule 1.2(d) can never occur.  Such a determination can only be made depending upon the unique facts presented."

This response from Mr. Plattsmier provides critical guidance for Louisiana attorneys seeking to wade through these uncharted waters.  Our letter to Richard C. Stanley and Mr. Plattsmier's response thereto are reproduced below in full.  

If you have any questions regarding Louisiana's medical marijuana program, please do not hesitate to contact our firm.


          Author:  W. Scott Keaty and Joshua G. McDiarmid
          Practice Area:  Medical Marijuana Law
          Date:  May 16, 2017

Disclaimer: The information provided herein (1) is for general information only; (2) does not create an attorney-client relationship between the author or the author’s firm and the reader; (3) does not constitute the provision of legal advice, tax advice, or professional consulting of any kind; and (4) does not substitute for consultation with professional legal, tax or other competent advisors. Before making any decision or taking any action in connection with the matters discussed herein, you should consult with a professional legal, tax and/or other advisor who should be provided with all pertinent facts relevant to your particular situation. The information provided herein is provided “as is,” with no assurance or guarantee of completeness, accuracy, or timeliness of the information.


April 10, 2017 letter from W. Scott Keaty and Joshua G. McDiarmid to Richard C. Stanley, Chairman of the Louisiana State Bar Committee on the Rules of Professional Conduct.

Mr. Richard C. Stanley, Chairman
Louisiana State Bar Committee on the Rules of Professional Conduct

Re:       Request for the Louisiana State Bar Committee on Rules of Professional Conduct to provide guidance concerning the ethical implications associated with the provision of legal advice relating to the cultivation and distribution of medical marijuana

Dear Mr. Stanley:

On May 19, 2016, Governor John Bel Edwards signed Senate Bill 271 into law, amending and reenacting La. R.S. § 40:1046, and providing for a comprehensive, working medical marijuana program in Louisiana (the “Act”).  Over a period just shy of a year, and in conformance with the Act, (1) the Louisiana State University Agricultural Center (“LSUAC”) and the Southern University Agricultural Center (“SUAC”) have exercised their respective options to be licensed as the sole production facilities in Louisiana, (2) the Louisiana Board of Pharmacy has proposed new regulations establishing a special type of pharmacy permit to enable the dispensing of marijuana for therapeutic purposes, (3) LSUAC, through the Board of Supervisors of Louisiana State University and Agricultural & Mechanical College, issued a Solicitation for Offers seeking a single supplier with which to contract for the cultivation, extraction, processing, and production of medical marijuana (in response to which seven firms have submitted an offer), and (4) SUAC, through the director of the Southern Institute of Medical Plants, Janana Snowden, PhD, indicated that it intends to release a Request for Proposals or Solicitation for Offers in the near future seeking a single vendor to conduct a “seed to sale” operation.

LSUAC and SUAC, and the various entities that will contract with and provide services to LSUAC and SUAC, will unquestionably require legal assistance in their efforts to navigate the complex regulatory scheme set forth in La. R.S. § 40:1046 and to determine how that regulatory scheme intersects with relevant federal and state law.  Currently, there is a tension between federal and state law regarding the legality of marijuana in any form.  More specifically, La. R.S. § 40:1046 is in conflict with 21 U.S.C. § 811, et seq., the Controlled Substances Act, which classifies marijuana as a Schedule I controlled substance.  Indeed, it is still a federal crime to cultivate, manufacture, distribute, and possess any form of marijuana, whether medical or recreational.  However, notwithstanding this conflict, in August 2013,  

James M. Cole, then Deputy Attorney General of the United States, issued new guidance regarding marijuana enforcement (the “Cole Memorandum”).  Essentially, the Cole Memorandum states that jurisdictions that have legalized marijuana in some form are less likely to be threats to the federal priorities under the Controlled Substances Act if they have implemented strong and effective regulatory and enforcement systems to control the cultivation and distribution of marijuana.  Relying on this guidance, more than half of the states, including Louisiana, have legalized medical marijuana.

Just as LSUAC and SUAC and various other entities require legal guidance to wade through these uncharted waters, the members of the Louisiana State Bar Association require guidance to evaluate the manner in which our provision of legal assistance on matters related to the cultivation and distribution of medical marijuana intersects with our ethical obligations under La. R. Prof. Conduct 1.2(d), which is identical to Rule 1.2(d) of the American Bar Association Model Rules of Professional Conduct (“Rule 1.2(d)”).  Rule 1.2(d) provides that:

"A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law."

In light of the tension between Louisiana and federal law, it is not clear whether Rule 1.2(d) allows or disallows for Louisiana practitioners to provide legal counsel to entities that seek legal guidance on matters related to the cultivation and distribution of medical marijuana.

The state bar associations of Hawaii, Alaska, Illinois, Nevada, Oregon and Washington, recognizing this tension between state law and federal law, have amended their variants of Rule 1.2(d) to allow their practitioners to provide legal counsel and assistance regarding the cultivation and distribution of medical (and/or recreational) marijuana.  Likewise, the ethics committees for the State Bar of Arizona and the New York State Bar Association each released opinions permitting such conduct.  Indeed, although the Arizona Supreme Court recently declined (without providing comment) to adopt a petition that would have formally codified the ability of lawyers to provide legal counsel and assistance regarding the cultivation and distribution of medical marijuana, the ethics committee for the State Bar of Arizona explained in Ethics Opinion 11-01 that:

"[W]e decline to interpret and apply [Rule 1.2(d)] in a manner that would prevent a lawyer who concludes that the client’s proposed conduct is in “clear and unambiguous compliance” with state law from assisting the client in connection with activities expressly authorized under state law, thereby depriving clients of the very legal advice and assistance that is needed to engage in the conduct that the state law expressly permits. […]  A state law now expressly permits certain conduct.  Legal services are necessary or desirable to implement and bring to fruition that conduct expressly permitted under state law.  In any potential conflict between state and federal authority, such as may be presented by the interplay between the Act and federal law, lawyers have a critical role to perform in the activities that will lead to the proper resolution of the controversy."

As you know, the Louisiana State Bar Committee on the Rules of Professional Conduct (the “Committee”) debated this very issue on November 2, 2016, and ultimately declined to recommend an amendment to the Louisiana Rules of Professional Conduct that would have clarified whether Louisiana practitioners are permitted to provide legal counsel or assistance to entities that seek legal guidance on matters related to the cultivation and distribution of medical marijuana.

Respectfully, we urge that the Committee revisit this issue and clarify the ethical responsibilities of Louisiana practitioners in this novel area of the law.  At this time, the Committee has three options—and two of these options are fraught with consequences that the Committee would surely want to avoid.  First, the Committee could provide no guidance on whether Louisiana practitioners can or cannot advise clients on matters related to the cultivation and distribution of medical marijuana.  Under such circumstances, individuals and entities that seek legal guidance will have to navigate the complex regulatory scheme set forth in La. R.S. § 40:1046 on their own or will have to retain attorneys who are willing to operate in the grey area that exists if the Committee does not provide guidance.  This, in turn, will divide Louisiana practitioners into two distinct camps—the cautious and the cavalier—the former risking relationships with longstanding clients and the latter risking sanctions from the Louisiana Attorney Disciplinary Board.  Second, the Committee could provide that Louisiana practitioners cannot advise clients on issues related to the cultivation and distribution of medical marijuana.  Under such circumstances, individuals and entities that seek legal guidance will be forced to forego legal guidance altogether.  Significantly, the inability of Louisiana attorneys to provide legal guidance on matters related to the regulatory scheme enacted by the Louisiana legislature will make it far more difficult for individuals and entities to comport with the Cole Memorandum, which stresses that strong and effective regulatory and enforcement systems are necessary to justify federal forbearance from enforcement of the Controlled Substances Act, which is technically applicable.  Third, the Committee could provide that Louisiana practitioners are permitted to advise clients on issues related to the cultivation and distribution of medical marijuana.  We believe that this is the only option that is justifiable in light of the Louisiana legislature’s decision to establish a medical marijuana program.

We ask that the Committee provide guidance to its members in the near term concerning whether the prohibition contained in Rule 1.2(d) bars the provision of legal assistance to individuals and entities  on matters relating to the cultivation and distribution of medical marijuana.

Best regards.

Sincerely,

W. Scott Keaty
Joshua G. McDiarmid


May 15, 2017 letter from Charles B. Plattsmier, Chief Disciplinary Counsel, to Scott Keaty.

W. Scott Keaty
Kantrow, Spaht, Weaver & Blitzer

                        Re:  Medicinal Marijuana/ RPC 1.2(d)

Dear Mr. Keaty:

I am aware that an issue has arisen affecting numerous attorneys who seek to provide legal guidance and advice as it relates to the recently approved medicinal marijuana law passed by the Louisiana legislature in May of 2016. Attorneys are struck by the dilemma created by Rule 1.2(d) which provides:

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

For attorneys, the issue becomes acute because the possession and distribution of marijuana continues to be prohibited under federal criminal statutes. While the United States Department of Justice has traditionally left to local law enforcement the investigation and prosecution of low-level, localized activity, the fact remains that federal law still makes this activity a criminal offense. Moreover, under the former presidential administration, the “Cole Memorandum” was issued which reaffirmed that the federal government relies on state and local law enforcement agencies to address localized marijuana activity through the enforcement of state and local law. To my knowledge, the “Cole Memorandum” has not been withdrawn notwithstanding the recent presidential election and confirmation of the new attorney general.  Moreover, as of this date the current U.S. Attorney General has not formally announced a departure from the Justice Department’s prior position on medicinal marijuana.

The public policy supporting a lawyer’s representation of clients in Louisiana is extraordinarily important. Louisiana clients should be able to avail themselves of a lawyer’s services when navigating the ever-changing landscape of issues that arise when establishing a medicinal marijuana related activity or business; obtaining licensing and registration; and providing guidance on how to comply with the strict regulatory requirements of Louisiana state law applicable to medicinal marijuana. Moreover, in providing these legal services to clients, the lawyer helps to ensure the strong and effective state regulatory system that is required under current federal enforcement guidelines. Finally the lawyer also helps protect both the client and the public, which protections remain the primary purpose of the Louisiana Rules of Professional Conduct.

It falls to me in my capacity as the Chief Disciplinary Counsel to determine in the first instance whether to initiate disciplinary action against a lawyer for alleged violations of the Rules of Professional Conduct. To date, this office has not received a complaint by any individual or source suggesting that the attorneys who are currently assisting in the providing of legal advice to clients in the arena of medicinal marijuana (including Louisiana State University, Southern University, related entities such as the Board of Supervisors and Board of Regents, and others) have violated the Rules of Professional Conduct including but not limited to Rule 1.2(d). Nonetheless, there remains uncertainty for those attorneys who seek to strictly comply with their ethical obligations under the Rules of Professional Conduct, yet provide much needed legal advice and guidance to their clients in this arena.

It is my judgment that an appropriate course for this office to take is to acknowledge that Louisiana lawyers have a right and a duty to provide legal advice to clients on how best to comply with state law on the topic of medicinal marijuana. In all instances, the lawyer has a concomitant obligation to advise the client of the facial conflict which exists between Louisiana’s medicinal marijuana law and federal law on the subject. Lawyers who, in good faith, attempt to provide legitimate legal advice and counsel on how best to comply with Louisiana’s medicinal marijuana laws as passed by our state legislature should be permitted to do so. Because the facts and circumstances of every case can differ, however, I do not believe that it is prudent to suggest that a violation of Rule 1.2(d) can never occur.  Such a determination can only be made depending upon the unique facts presented.

It is not the function of the Office of Disciplinary Counsel to provide ethics advice or advisory opinions. However, under the circumstances presented it is my judgment that lawyers should be notified of the position I have taken in the matter.

With kind regards and best wishes, I remain

Sincerely,

Charles B. Plattsmier
Chief Disciplinary Counsel 

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