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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 11 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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<a href="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2014/10/Marijuana-leaf.jpg"><img style="max-width: 100%;height: auto;max-width: 100%;height: auto" loading="lazy" class="alignright size-thumbnail wp-image-1180" src="https://www.thelawforlawyerstoday.com/wp-content/uploads/sites/754/2014/10/Marijuana-leaf-119x150.jpg" alt="Marijuana leaf" width="119" height="150"></a>We posted <a href="https://www.thelawforlawyerstoday.com/2014/07/representing-clients-in-the-marijuana-industry-greener-grass/">here </a>&nbsp;in July&nbsp;about the legal ethics aspects of representing clients involved in the marijuana industry.
Now comes an ethics ruling from North Dakota about a lawyer&rsquo;s own use of medical marijuana. &nbsp;The lawyer, living in North Dakota and licensed there, has a medical condition that qualifies the lawyer for medical marijuana treatment under Minnesota law. &nbsp;North Dakota has no medical marijuana law. &nbsp;The lawyer asked the ethics committee whether the lawyer could move to Minnesota and obtain marijuana treatment there while continuing to have a North Dakota law license.
&ldquo;No go&rdquo; in North Dakota
In <a href="https://sband.org/UserFiles/files/pdfs/ethics/Opinion%2014-02.pdf">Opinion 14-02</a>, the ethics committee said &ldquo;No,&rdquo; advising that the lawyer would be violating the state&rsquo;s <a href="http://www.ndcourts.gov/rules/Conduct/frameset.htm">Rule 8.4</a>. &nbsp;The rule provides that it is professional misconduct for a lawyer to &ldquo;commit a criminal act that reflects adversely on the lawyer&rsquo;s honesty, trustworthiness, or fitness as a lawyer in other respects[.]&rdquo;
Because using marijuana for any purpose, even a medical one, is a crime&nbsp;under federal law, the ethics committee advised that if the lawyer &ldquo;purchased, possessed or ingested marijuana in Minnesota, the attorney would be violating federal law each and every time [the lawyer] did so.&rdquo; &nbsp;See <a href="http://www.gpo.gov/fdsys/granule/USCODE-2011-title21/USCODE-2011-title21-chap13-subchapI-partB-sec812/content-detail.html">21 U.S.C. &sect; 812(a)</a> (listing marijuana as Schedule I controlled substance); <a href="https://supreme.justia.com/cases/federal/us/532/483/case.html#opinion">U.S. v. Oakland Cannabis Buyers&rsquo; Coop</a>. (federal Controlled Substances Act has no medical necessity exception for marijuana). &nbsp;That conduct would signify that the lawyer was engaging in a pattern of repeated offenses &ldquo;that indicates indifference to legal obligations&rdquo; and that would constitute a violation of Rule 8.4.
The North Dakota ethics committee also pointed to the supremacy of federal law, citing the state supreme court&rsquo;s recent rejection of two criminal defendants&rsquo; claims that Washington medical marijuana prescriptions provided a defense to controlled substance crimes. See <a href="https://www.ndcourts.gov/supreme-court/dockets/20130334" target="_blank" rel="noopener">State v. Kuruc</a> (state law that conflicts with federal law is without effect; ruling otherwise would mean that North Dakota would have to &ldquo;recognize out-of-state marijuana prescriptions even though the same exact prescription cannot be made legal for its own citizens.&rdquo;).
Colorado: &nbsp;lawyers can ethically use
North Dakota is just the second state to consider a lawyer&rsquo;s own personal use of marijuana and whether it violates ethics rules. &nbsp;Two years ago, Colorado Ethics&nbsp;<a href="http://www.cobar.org/tcl/tcl_articles.cfm?articleid=7626">Opinion 124</a>&nbsp;held that a lawyer&rsquo;s own use of medical marijuana, as legalized under state statute there, &ldquo;does not necessarily violate [Rule] 8.4(b),&rdquo; even though the conduct &ldquo;may constitute a federal crime.&rdquo;
In contrast to North Dakota, the Colorado ethics committee saw no &ldquo;nexus&rdquo; between the lawyer&rsquo;s use of medical marijuana and the lawyer&rsquo;s honesty, trustworthiness or &ldquo;fitness as a lawyer in other respects&rdquo; within the meaning of the state&rsquo;s version of Rule 8.4, as long as the lawyer was complying with Colorado law. &nbsp;And last year, after Colorado decriminalized recreational marijuana use, the state ethics committee issued an addendum to Opinion 124, extending the reasoning to cover a lawyer&rsquo;s recreational use of the drug.
Colorado judges are another story
But illustrating how the marijuana issue can tie regulators up in knots, Colorado&rsquo;s Judicial Ethics Advisory Board <a href="http://www.courts.state.co.us/userfiles/file/Court_Probation/01st_Judicial_District/Pro_Se_Divorce_Information/2014-01.pdf">concluded earlier&nbsp;this year&nbsp;</a>that a Colorado &nbsp;judge&nbsp;cannot use marijuana for either medicinal or recreational purposes without running afoul of Rule 1.1 of the Colorado Code of Judicial Conduct. &nbsp;The rule provides that a judge must comply with the law, and that violating a criminal law constitutes such a violation, &ldquo;unless minor.&rdquo; &nbsp;Marijuana use of any sort is not a minor violation, the judicial board held, because it is a federal crime.
As we advised in July, the ethics law on the marijuana issue seems to be in a state of flux across the board. &nbsp;You are well-advised to follow developments in your own jurisdiction carefully, as well as keeping up to date on developments in the federal law.

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Ethics

Legal Ethics, Professional Responsibility and the Business of Law

Pot prescription does not make lawyer’s own use ethical, says North Dakota