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The question presented in this article is more fundamental: is it an ethical violation for a lawyer to commit a federal offense by using marijuana?
Various states have legalized the use marijuana; many for medicinal purposes, and a few for recreational use. The cultivation, possession, transportation, or use of marijuana remains illegal under federal law, which raises multiple ethical issues for lawyers. 21 U.S.C. § 811. The Supremacy Clause of the U.S. Constitution unambiguously provides that if there is any conflict between federal and state law, federal law prevails. Gonzales v. Raich, 545 U.S. 29 (2005). Thus, for purposes of ethical analysis, the use of marijuana still must be considered a crime.
One set of issues – to be dealt with in a later article in this series – regards advising clients with respect to marijuana-related businesses. The question presented in this article is more fundamental: is it an ethical violation for a lawyer to commit a federal offense by using marijuana?
ABA Model Rule 8.4 (Misconduct) provides:
It is professional misconduct for a lawyer to: . . . (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects . . . .
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud and the offense of willful failure to file an income tax return. However, some kinds of offenses carry no such implication. Traditionally, the distinction was drawn in terms of offenses involving “moral turpitude.” That concept can be construed to include offenses concerning some matters of personal morality, such as adultery and comparable offenses, that have no specific connection to fitness for the practice of law. Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of characteristics relevant to the law practice. Offenses involving violence, dishonesty, breach of trust, or serious interference with the administration of justice are in that category.
Thus the question presented is whether smoking or otherwise consuming marijuana, without more, rises to the level of “moral turpitude.” The general view is that it does not. E.g.
Colorado Bar Association Formal Ethics Opinion 125 (lawyers use of medical marijuana, without more, does not violate Colorado Rules of Professional Conduct, which are patterned after the ABA model rules). A lawyer can, therefore, ethically use marijuana on Friday night and, if sober, return to work on Monday morning without committing an ethical violation.
A lawyer who uses marijuana over lunch and returns to work that afternoon while still under the influence of marijuana probably does violate the rules of professional conduct, however. First, ABA Model Rule 1.1 (Competence) requires lawyers to be competent. A lawyer under the influence of marijuana likely is not.
Second, such conduct would also likely violate ABA Model Rule 1.16 (Declining or Terminating Representation), which requires the lawyer to terminate representation when “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.” A lawyer under the influence of marijuana is materially impaired, and thus must not practice law while in that condition.
A lawyer’s use of marijuana may also affect the lawyer’s colleagues. ABA Model Rule 8.3 (Reporting Professional Misconduct) requires that a colleague report the ethical violations of another attorney when “a lawyer . . . knows that another lawyer has committed a violation of the rules of professional conduct that raises a substantial question as to that lawyer’s . . . fitness as a lawyer in other respects.” Substance abuse is one area where reporting a colleague may be required. Accordingly, a lawyer regularly using marijuana while practicing law may create a burden on his or her colleagues.