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
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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

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