Nevada attorneys call for rule change on medical pot issue

Las Vegas City Attorney Brad Jerbic told his bosses last week he would “rather keep my license and lose my job than the other way around.”

He’s not the only attorney dealing with the medical marijuana issue to express concern that advising their clients could create legal woes with the State Bar of Nevada.

Five other attorneys from the private sector and governments in North Las Vegas, Reno and Sparks have asked the Bar’s Standing Committee on Ethics and Responsibility whether they can be disciplined for violating ethics rules if they advise clients how to set up marijuana dispensaries.

As local governments wrestle with zoning and licensing decisions related to medical marijuana, they want and need legal advice sooner rather than later.

Generally, it takes six to eight months from the time of the request to a final approval by the Nevada Supreme Court. Jerbic made his request on Oct. 23.

Instead of waiting eight months for an advisory opinion, State Bar President Alan Lefebvre said the bar’s board of governors expects to ask for a rule change that might require Nevada Supreme Court approval in a month or two, presuming the court agrees.

That rule change would eliminate the conundrum lawyers face between advising clients on an issue state law says is legal or following federal law, which says marijuana possession is a felony. It would also make an ethical opinion unnecessary.

Jerbic announced in January that he was going to temporarily “bow out” of drafting the city’s medical marijuana ordinance because the dispensaries violate federal law.

After being chastised at last Wednesday’s City Council meeting, Jerbic softened his position. Monday he said he can and will be able to advise city officials, but “At the end of deliberations, I have to put my signature on an ordinance, that’s the problem.”

In an interview, Jerbic said that “City attorneys across the country are dealing with the same issue. The bottom line is that state law does not invalidate federal law. And the only legal advice I can really give at this point is not to do it. Don’t commit a crime.”

States that have legalized marijuana have taken conflicting positions on whether attorneys are at risk. Some have steered clear; others see no problem.

The ‘no-problem’ crowd relies on a 2009 Attorney General Eric Holder memo saying the federal government won’t prosecute lawyers in states allowing medical marijuana. Also, no attorneys have been disciplined in any state.

Last week, Jerbic annoyed at least two councilmen — Ricki Barlow and Bob Coffin — when he said the city should not allow dispensaries because marijuana for any reason remains illegal under federal law. Clark County, meanwhile, has no such concerns and expects to vote March 5 on its ordinance.

Alan Freer, chairman of the State Bar of Nevada’s Standing Committee on Ethics and Professional Responsibility, said attorneys have asked whether they can be disciplined for advising clients how to set up dispensaries and how to obtain a license.

Freer admitted that getting an advisory opinion on divisive and highly political questions is painstakingly slow, often taking six to eight months from the time the request is made to the ethics committee’s recommendation to the review by the Office of Bar Counsel, to the vote of the bar’s Board of Governors to the review by the Nevada Supreme Court.

The Nevada Rules of Professional Conduct for attorneys, which mirror those of other states, includes Rule 1.2: “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

Nevada could look to pot-friendly Washington state, where the comparable rule for King County lawyers now reads: “A lawyer shall not be in violation of these rules or subject to discipline for engaging in conduct, or for counseling or assisting a client to engage in conduct, that by virtue of a specific provision of Washington state law and implementing regulations is either (a) permitted, or (b) within an affirmative defense to prosecution under state criminal law, solely because that same conduct, standing alone, may violate federal law.”

Chief Justice Mark Gibbons, during an unrelated meeting last week with some members of the Bar’s board of governors, said he would ask the other justices to expedite a review of a rule change if the Bar asks for it, according to his spokesman, Bill Gang.

Lefebvre said he opposes legalizing medical marijuana but said as bar president he can support a rule change in line with a law that passed the Legislature and was signed by Gov. Brian Sandoval, a former federal judge.

“I have to do what’s good for the bar membership,” he said.

Contact reporter Jane Ann Morrison at jmorrison@reviewjournal.com or 702-383-0275.