The State Bar Association of North Dakota Fall 2014 Gavel Magazine - Page 34

STATE BAR ASSOCIATION OF NORTH DAKOTA ETHICS COMMITTEE OPINION NO. 14-02 This opinion is advisory only QUESTION PRESENTED The Ethics Committee has been asked to render its opinion on whether Attorney may live and use medical marijuana prescribed by a physician in Minnesota and be licensed to practice law in North Dakota. OPINION Based on the facts presented below, Attorney would not be able to live and use medical marijuana prescribed by a physician in Minnesota while being licensed to practice law in North Dakota. The conduct would be a violation of N.D.R. Prof. Conduct 8.4(b). APPLICABLE NORTH DAKOTA RULES OF PROFESSIONAL CONDUCT Rule 8.4, N.D.R. Prof. Conduct: Misconduct FACTS PRESENTED Attorney, who currently lives in North Dakota, has a nonterminal medical condition qualifying the attorney for medical marijuana treatment under Minnesota law. Attorney has tried other treatments, which have been unsuccessful in maintaining Attorney’s desired quality of life. Attorney wishes to move to Minnesota to participate in a medical marijuana treatment program while continuing to have a license to practice law in North Dakota. DISCUSSION Attorney recognizes that N.D.R. Prof. Conduct 8.4(b) is the governing authority on whether the conduct would be a per se ethical violation. Attorney suggests that use of medical marijuana is not within the scope of N.D.R. Prof. Conduct 8.4(b). The rule provides that “[i]t is professional misconduct for a lawyer to . . . commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects[.]” N.D.R. Prof. Conduct 8.4(b). The comment to the rule notes the distinction between criminal acts that are ethical violations and criminal acts that are not: “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.” N.D.R. Prof. Conduct 8.4(b) cmt. Beyond that distinction, the comment points out that recurring criminal acts may also be an ethical violation: “A pattern of repeated offenses, even 34 THE GAVEL ones of minor significance when considered separately, can indicate indifference to legal obligations.” Id. The comment’s explanation about a pattern of repeated offenses shows why Attorney’s conduct would be an ethical violation. As Attorney acknowledges, federal law designates the use of marijuana for any purpose, even a medical one, as a crime. See 21 U.S.C. § 841(a)(1). As a schedule I controlled substance under federal law, marijuana has been determined to have a high potential for abuse and to have no accepted medical use for treatment and lack accepted safety for use under medical supervision. See 21 U.S.C. § 812(b)(1). Thus physicians, practitioners, and pharmacists are prohibited under federal law from prescribing or dispensing marijuana. See United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483, 491 (2001) (Controlled Substances Act has no medical necessity exception for marijuana). Further, it is unquestionable that the federal government has authority to prohibit marijuana for all purposes despite valid state laws authorizing the medical use of marijuana. See Gonzales v. Raich, 545 U.S.1 (2005). So if Attorney purchased, possessed or ingested marijuana in Minnesota, the attorney would be violating federal law each and every time Attorney did so. In other words, Attorney would be engaging in a “pattern of repeated offenses” that indicates indifference to legal obligations and constitute a violation of N.D.R. Prof. Conduct 8.4(b). N.D.R. Prof. Conduct 8.4(b) cmt. North Dakota law bolsters the conclusion that Attorney’s conduct would constitute a violation. Indeed, North Dakota law on controlled substances – and marijuana in particular - aligns with federal law. As under federal law, the manufacture, possession, and use of marijuana for any purpose, even a medical one, is a crime under North Dakota law. See N.D.C.C. § 19-03.1-23. As under federal law, marijuana is classified as a schedule I controlled substance and thus has been determined to (1) have high potential for abuse and (2) have no accepted medical use in tr