Is it ethical for an Alaska attorney to smoke marijuana? The Alaska Bar Association's Ethics Committee has weighed in with an informal opinion on that question and two other key ethical issues surrounding attorneys and soon-to-be legalized recreational marijuana in Alaska.
The ethics committee examined the issues in an analysis posted to the Alaska Bar Association's website, "particularly in light of the conflict between state and federal law," the analysis states. Though recreational marijuana will become legal Feb. 24 in Alaska, it remains illegal under federal law.
The analysis stresses it is not a formal opinion, nor a ruling from the Bar Board of Governors, which will meet in late January and discuss ethical issues related to marijuana, bar counsel Steve Van Goor said. The board may propose amendments to the Alaska Rules of Professional Conduct -- which include rules outlining attorneys' ethical conduct -- given the changes to state law. Any changes to the rules must be adopted by the Alaska Supreme Court, according to Van Goor.
The analysis does let attorneys "know what direction the wind is going to blow," Van Goor said, as they navigate the new frontier of legalized recreational marijuana.
Is it ethical for attorneys to use marijuana?
The first issue raised is whether it is ethical for an attorney to use marijuana. In this regard, nothing has changed, the analysis states.
"It has always been an individual decision for a lawyer to use marijuana privately," Van Goor said.
The analysis points to the Alaska Supreme Court's 1975 Ravin v. State decision, which extends Alaskans' right to privacy to include possessing small amounts of marijuana in the home. The analysis also notes the conflict with federal law, under which marijuana use is prohibited.
Van Goor said there was a "lack of a clear black and white answer," as to the conflicts between federal and state law. However, since the Ravin decision, the choice has been a "personal one" that "hasn't really been an issue," Van Goor said.
The analysis notes "no Alaska lawyer has ever been disciplined for (discreet) and private use of marijuana."
However, overusage of marijuana that affects an attorney's practice could be a basis for action against the attorney, Van Goor said. Engaging in activity such as dealing drugs would be both a felony and "likely ... unethical as well," the analysis states.
Attorneys subject to drug testing through their employers may still be prohibited from using marijuana.
Can attorneys ethically advise clients on how to operate a business while complying with state law?
In a nutshell, the analysis found that yes, an attorney can ethically advise clients on how to operate a marijuana business, so long as the attorney also advises federal law still prohibits the sale of marijuana.
Colorado and Washington attorneys have grappled with the same ethical dilemma of advising a client on conduct that is illegal federally, Van Goor said. Those states have said "look, if it's a legal business ... then lawyers should be able to advise clients," Van Goor said.
Can an attorney ethically get involved in a marijuana business?
The last question the analysis addresses is whether an attorney can ethically get involved with a marijuana business. Can an attorney draft documents, or invest financially in a marijuana venture?
"It's a sensitive area," Van Goor said, the trickiest question of the three, and one the Board of Governors will need to consider.
In terms of drafting business documents and providing business law services, the analysis states that an attorney "probably could" ethically provide a marijuana business the same services as any other legal business.
But to actually participate in a marijuana business is more complex, ethically speaking, the analysis states. It's too early to tell how the Board of Governors may decide on that, Van Goor said.
The final say? Until rules are adopted, an attorney should "exercise caution and not become directly involved in operating a business that remains illegal under federal law."
Alaska Dispatch Publishing