Jan. 26, 2017By
We’ve written before
about the intersection of legal ethics and marijuana, focusing on counseling business clients
in the marijuana space. But two recent disciplinary cases caught my eye, each involving a lawyer’s personal marijuana use, and they highlight interesting issues.
Fitness to practice?
The first case involves an Illinois-licensed lawyer who lived in both Michigan and Illinois, and although the case is still at the pleading stage, it raises the question of what kind of criminal conduct reflects adversely on a lawyer’s honesty, trustworthiness or fitness to practice, so as to violate Model Rule 8.4(b)
Under Michigan law, the lawyer was a “qualifying patient” and therefore able to legally possess 2.5 ounces of marijuana for medicinal purposes. The lawyer’s girlfriend was licensed as the lawyer’s “primary caregiver” under the same law, and therefore she was allowed to possess up to five ounces of marijuana and grow up to 24 marijuana plants.
In his answer
to a complaint filed by the Illinois disciplinary commission, the lawyer did not contest: that from June 2012 to December 2013, his girlfriend grew more than 24 plants in the garage of the rented home they maintained in Michigan; that she also manufactured marijuana products and sold them to third parties; and that he had knowledge of her manufacture and sale of marijuana and provided “informational and financial assistance” to her operation.
According to the Commission’s complaint
, law enforcement’s search of the Michigan garage found more than 100 marijuana plants. In his answer, the lawyer denied that he knew of his girlfriend’s expanded grow operation before then.
The lawyer initially pled guilty to conspiracy to manufacture marijuana and was placed on deferred probation, which he completed; he then pled to a misdemeanor charge for maintaining a drug house, and the conspiracy charge was dismissed.
In the widely-read Legal Profession Blog, this case was headlined “Does Growing More Marijuana Plants than Permitted for Lawful Medical Use Reflect Adversely on Fitness?
” A knee-jerk answer would be, “Well, yes, because Rule 8.4(b) is violated whenever a lawyer commits a crime.” But the comments to the Rules invite a more searching analysis. Comment  notes that
Many kinds of illegal conduct reflect adversely on fitness to practice law, such as offenses involving fraud … However some kinds of offenses carry no such implication… Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice.
Examples of offenses indicating such a lack: those involving “violence, dishonesty, breach of trust, or serious interference with the administration of justice.”
The disciplinary complaint charges that the lawyer’s criminal offenses violated Rule 8.4(b); the lawyer neither admitted nor denied the legal conclusion. So — the issue has been joined, and it is one that will likely come up with increasing frequency as state-legalized medical and even state-legalized recreational marijuana use spreads.
Legal services in exchange for marijuana
The second disciplinary case involves a Louisiana lawyer charged with trading legal services for marijuana. As described in the state supreme court’s opinion
, a confidential informant told the sheriff’s office that she had paid her lawyer with dope on previous occasions, and he had told her that if she needed more legal help in the future, they could work out the “same old same old,” meaning payment in marijuana, or in drugs plus cash.
A sting was set up, in which the client-turned-informant told the lawyer she needed his help with criminal charges against her son, and that she had a “crap load of smoke” and a “backpack full of marijuana.” They met in a car, under police surveillance, and bargained over the amount of an additional cash payment. The lawyer then asked about “the other thing. [T]hat’s what I am most concerned about.” The client handed over a backpack with a half-pound of marijuana, worth $2,500, plus some marked cash.
Shortly after that, in front of his law office, law enforcement pulled the lawyer over for a traffic violation and arrested him.
Two weeks later, after news stories circulated about the incident, the lawyer self-reported his arrest to disciplinary authorities, and went into rehab. He was diagnosed with alcohol and cannabis dependence and unresolved grief and depression stemming from his father’s death two years earlier. He testified that the arrest was the best thing that could have happened to him, because he was finally forced to confront his addictions and get sober.
The interesting thing about this case is the disciplinary outcome on the charge of violating Louisiana’s version of Model Rule 8.4(b)
. The lawyer admitted the rule violation, was remorseful, cooperative, and in compliance with a five-year contract with the state lawyer-assistance program, which required AA meetings, drug screens, and monthly sobriety reports to a monitor. The diagnosis of addiction was not contested. There was no testimony that the lawyer neglected client matters before or after his arrest.
The initial hearing panel recommended a one-year suspension, fully deferred on condition of no further misconduct. The review board instead recommended a two-year fully-deferred suspension.
But the court rejected both of these recommendations, and instead issued an actual one-year suspension, with no deferment. The court wrote that the fact that “respondent bartered his legal services for illegal drugs” “directly implicat[ed] the practice of law and caus[ed] harm to the legal profession.” The court also found that there was “potential harm to his clients and the public.”
In contrast to the Illinois case, the Louisiana lawyer’s conduct was not just unlawful; the court drew a direct connection between the drugs and the lawyer’s practice, since he admittedly collected his legal fees in marijuana.
In the weeds
Irrespective of the result in the Louisiana case, the take-away from both cases should spotlight the role of lawyer assistance programs when lawyers are struggling with substance abuse issues. As we’ve noted before, these programs exist all over the country
, and as the one in my home jurisdiction of Ohio
says, no disciplinary problem is made worse by being involved in a program.Content courtesy of The Law for Lawyers Today: Ethics, Professional Responsibility and More blog. Ohio State Bar Association member Karen Rubin is an attorney for Thompson Hine.
Watch an OSBA CLE OnDemand seminar featuring Karen Rubin and her take on Legal Ethics and Using Social Media to Market Your Law Practice.