CAN MARYLAND-LICENSED ATTORNEYS ETHICALLY POSSESS OR CONSUME CANNABIS UNDER MARYLAND’S MEDICAL CANNABIS STATUTE?
IN 2014, MARYLAND BECAME ONE of a growing number of states to legalize the use and possession of cannabis for medical purposes. See Md. Code Ann., Health-Gen. Sections 13-3301 to 13-3311 (hereinafter “Maryland Medical Cannabis Statute”). However, the use and possession of cannabis remains illegal under federal law. Federal law continues to treat cannabis as a “Schedule I” narcotic, having no medical use or benefit. 21 USC Section 812(b); United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 491 (2001) (finding no medical necessity exception under federal prohibition of cannabis). As such, Maryland residents using or possessing cannabis for medical purposes in compliance with Maryland’s Medical Cannabis Statute are nonetheless violating federal law.
Does a Maryland-licensed attorney violate the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) when using or possessing cannabis for medical purposes in compliance with the Maryland Medical Cannabis Statute given that such conduct may violate federal law?
For the reasons set forth below, we believe that the mere use or possession of medical cannabis by a Maryland-licensed attorney in compliance with the Maryland Medical Cannabis Statute does not violate the MARPC (1). We caution, however, that attorneys may be subject to discipline if using or consuming cannabis interferes with their ability to competently and diligently practice law, even if such use or possession is for valid medical purposes in compliance with Maryland’s medical cannabis statutory scheme.
Facts Presented for Consideration
The General Assembly of the Maryland Legislature has authorized the establishment and implementation of a medical cannabis program, to be regulated by the Maryland Medical Cannabis Commission. In enacting this legislation, the Legislature broadly stated: The General Assembly intends that the programs implemented in accordance with this subtitle yield a successful but consumer- friendly medical cannabis industry in the State to provide patients affordable and adequate access to medical cannabis. Md. Code Ann., Health-Gen. Section 13-3301.1. The General Assembly has specifically considered and approved the participation of Maryland-licensed professionals as “qualifying patients” under the Maryland Medical Cannabis Statute, and in doing so, has provided protections for participating professionals’ licensure: Section 13-3313. Persons acting in accordance with subtitle not subject to arrest, prosecution, or civil or administrative penalties (a) Any of the following persons acting in accordance with the provisions of this subtitle may not be subject to arrest, prosecution, revocation of mandatory supervision, parole, or probation, or any civil or administrative penalty, including a civil penalty or disciplinary action by a professional licensing board, or be denied any right or privilege, for the medical use of or possession of medical cannabis; (1) A qualifying patient … See Md. Code Ann., Health-Gen. Section 13-3313(a)(1).
In analyzing whether an attorney may participate as a “Qualified Patient” under the Maryland Medical Cannabis Statute, we consider whether such participation would constitute a violation of MARPC 19-308.4. A lawyer violates MARPC 19-308.4(b) by committing “a criminal act that reflects adversely on the attorney’s honesty, trustworthiness or fitness as an attorney in other respects.” Comment 2 to Rule 19-308.4 clarifies that not all criminal offenses constitute a violation of the rules. Rather, “an attorney should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice” like “[o] ffenses involving violence, dishonesty, or breach of trust, or serious interference with the administration of justice.” Id.
Comment 2 further explains that an attorney is subject to professional discipline for “[a] pattern of repeated offenses, even ones of minor significance when considered separately” if the pattern demonstrates indifference to legal obligations. Id. We do not believe that the use or possession of medical cannabis in compliance with the Maryland Medical Cannabis Statute reflects on an attorney’s honesty, trustworthiness, or fitness as an attorney, and thus, cannot itself constitute a violation of MARPC 19- 308.4(b). Moreover, in light of the conflict between the Maryland Medical Cannabis Statute and federal law designating cannabis as having “no medical use,” we do not believe that a pattern of compliant medical use by a Maryland-licensed attorney demonstrates an indifference to legal obligations sufficient to constitute an ethical violation of the MARPC.
This conclusion is confirmed by the express language of Maryland’s Medical Cannabis Statute, which specifically includes language that allows for the participation of Mary- land-licensed professionals as qualifying patients, without subjecting their licensure to risk of discipline. Indeed, Maryland’s Medical Cannabis Statute expressly prohibits “disciplinary action by a professional licensing board, or [denial of] any right or privilege, for the medical use of or possession of medical cannabis.” Md. Code Ann., Health-Gen. Section 13-3313. We believe that the class of professions protected by this language includes Maryland attorneys. In light of the Maryland Legislature’s expressed intent to allow professionals, including attorneys, to participate in Maryland’s medical cannabis program, we do not believe that the MARPC would subject Maryland-licensed attorneys to discipline for such participation, in the absence of some additional fact(s) that adversely impacted the attorney’s competency. In addition, this Committee opined in 2016- 10 that Maryland law and the MARPC, when read together, allow a Maryland lawyer to advise clients on compliance with Maryland’s marijuana laws and also allow lawyer’s to engage in businesses authorized under Maryland law including cannabis businesses.
While the conflict between federal and state law creates difficult ambiguities, this Committee, as it was in 2016-10, is charged with interpreting the Maryland Rules and where, as here, the legislature has clearly identified the public policy of this State, this Committee must recognize and adhere to that policy. We believe that the private statutorily compliant consumption of medical cannabis should not subject attorneys to professional discipline. We believe, however, that any attorney consuming medical cannabis in compliance with Maryland law, but who allows their use to adversely affect their practice of law, remains subject to discipline. See MARPC 19-301.1 (“An attorney shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.); MARPC 19-301.16 (requiring attorney to decline representation or withdraw “if the attorney’s physical or mental condition materially impairs the attorney’s ability to represent the client”); see also Attorney Grievance Comm’n of Maryland v. Finlayson, 293 Md. 156, 159–61, 442 A.2d 565, 567–68 (1982) (suspending attorney for misconduct arising because of alcoholism with right to reapply upon fulfillment of rehabilitation conditions).
Very truly yours, MSBA COMMITTEE ON ETHICS