Nevada justices asked to protect lawyers on medical marijuana advice

The Nevada Supreme Court is being asked to protect lawyers who advise clients on medical marijuana issues.

The Nevada Bar Association on Tuesday asked justices to adopt a rule to shield attorneys from the losing their law licenses if they counsel somebody who wants to open a medical marijuana dispensary in violation of federal law.

Alan Lefebvre, president of the State Bar, said the 50-page petition was filed in Carson City.

If the Supreme Court rules in the Bar’s favor soon, then Nevada could become the first state in the country where lawyers can represent medical marijuana clients without suffering the legal repercussions, he said.

The states of Colorado and Washington have filed similar petitions with their state supreme courts, but those courts have not yet heard the petitions, Lefebvre said.

“Lawyers these days are caught between the devil and the deep blue sea on this subject,” Lefebvre said. “But if the state Supreme Court rules in our favor, then at least it will give our attorneys the opportunity to provide advice on a state-created statute that runs contrary to federal law.”

Last week, the State Bar’s 15-member governing board voted to amend its rules of professional conduct and allow lawyers to dispatch legal advice on medical marijuana. It did so after the Bar’s ethics hotline received several inquiries from attorneys who were worried about losing their licenses because the use of medical pot and its cultivation are both still illegal under federal law, the petition said.

“There is a pressing need by local government and the public for legal assistance to implement Nevada law but an inability to respond ethically since such advice and assistance would constitute a federal crime,” the petition said.

Under the state Bar’s new amendment, a lawyer “shall not be in violation … 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 Nevada state law, is permitted,” the petition said.

On April 1, the state is expected to finalize rules and regulations that will make it legal for 66 medical marijuana dispensaries to operate in Nevada, with as many as 40 of them in Clark County.

In October, however, Las Vegas City Attorney Brad Jerbic said he had reservations about doling out legal advice to the City Council as it tried to decide whether to allow 10 medical pot dispensaries to operate within the city proper. As a result, he recused himself from such duty in January, raising the ire of some pro-medical marijuana council members and setting the stage for the State Bar’s amendment.

An Oct. 23 letter Jerbic wrote to Bar counsel David Clark was used as one of the exhibits presented to the Supreme Court. In it, Jerbic writes that he is seeking an opinion on the matter, saying that though federal authorities have all but said they did not plan to focus resources on medical marijuana enforcement, there is no doubt that the distribution of medical marijuana is still against the law, according to an Oct. 19, 2009, memorandum written by then-U.S. Deputy Attorney General David W. Ogden.

“This guidance regarding resource allocation does not ‘legalize’ marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil or criminal matter,” Ogden wrote.

Jerbic posed one question to the Bar: “My question is whether and how a public attorney might act in regard to clients whose intention may be to engage in conduct which is permitted by state law and which might not, currently, be prosecuted under federal law, but which nonetheless is a federal crime.”

Under the universal rules of professional conduct, a lawyer shall not counsel a client to break the law.

Lefebvre said the State Bar’s amendment will assure attorneys that they will never lose their license in the state, but it will never guarantee them immunity from the federal government.

“They could still be prosecuted. But the point of our petition and the state Supreme Court’s pending ruling is that the lawyers will not be subject to discipline by the State Bar. The State Bar controls their licenses and has jurisdiction.”

Lefebvre said the Supreme Court is expected to give the petition priority and hold a public hearing before voting on it.

“Anybody affected will have the opportunity to speak,” he said, adding that the Supreme Court faces an important decision because it will be making an exception to a uniform rule, namely that lawyers cannot, or should not, counsel their clients where conduct in illegal activities is involved.

Contact reporter Tom Ragan at tragan@reviewjournal.com or 702-224-5512.