Editorial: A Necessary Change In Conn.'s Practice Book Rules

The Connecticut Law Tribune

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As everyone in Connecticut who reads a newspaper knows, in the spring of 2012 the Connecticut legislature legalized medical marijuana in this state. The Department of Consumer Protection has put in place regulations to govern the use, production and sale of medical marijuana that are clear, thorough and strict. Applications to establish grow facilities and dispensaries have been filed with the Department, which announced on Jan. 28 which companies will receive licenses for grow facilities. Decisions as to who may operate a dispensary are expected in a few months.

Though abuse of any system is always a possibility, abuse of the medical marijuana system in Connecticut will be difficult given the very comprehensive regulatory structure.

What is not at all clear, and remains a troubling concern, is whether an attorney representing a participant in the medical marijuana business in Connecticut faces exposure to professional discipline. Because marijuana remains illegal under federal law, an attorney who assists a Connecticut client applying for a state license, or a patient registering for the right to use marijuana for medical reasons in Connecticut, runs the risk of violating Rules 1.2(d) and 8.4(c) of the Rules of Professional Conduct. 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…" and under Rule 8.4(2) it is professional misconduct for a lawyer to engage in criminal conduct that "reflects adversely on a lawyer's honesty, trustworthiness or fitness as a lawyer..."

In light of these rules, Connecticut attorneys representing medical marijuana clients remain uneasy. Some firms in this state have simply refused to represent such clients. Others have limited the scope of such representation, attempting to walk the fine line between conduct that appears to be ethically permissible and conduct that violates the rules.

The Connecticut Bar Association's Standing Committee on Professional Ethics has proposed modest changes to the Rules of Professional Conduct that would give safe harbor under the rules to lawyers representing clients engaged in conduct permitted under the medical marijuana act. These proposed changes would (1) add language to Rule 1.2(d) to permit an attorney in Connecticut to "counsel or assist a client regarding conduct expressly permitted by Connecticut law"; (2) add language to the commentary to Rule 1.2(d) expressly referencing the medical marijuana act; and (3) add language to the commentary to Rule 8.4 stating that "Counseling or assisting a client with regard to conduct expressly permitted under Connecticut law is not conduct that reflects adversely on a lawyer's fitness, notwithstanding any conflict with federal law."

These changes would be consistent with the public policy of this state as reflected in the medical marijuana act and would protect lawyers from the threat of discipline arising out of the discrepancy between state and federal law.

The CBA's House of Delegates has approved the proposal to amend the rules and the proposal now awaits action by the Rules Committee of the Superior Court. That Committed has tabled discussion of the proposal, waiting for comment from the Office of Disciplinary Counsel and the Statewide Grievance Committee. We heartily endorse the proposed changes, thank the Ethics Committee for its work on this issue, and urge the Rules Committee to recommend their adoption. •

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    What a shame that this is happening any where in our country, let alone our own state.

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