hanks to the Arizona
Act (the “AMMA”), 1
marijuana use for medical purposes is legal
under Arizona law. Recreational use is now
legal in Colorado, Washington, Oregon, and
Alaska, and Arizona may soon follow suit.
On the other hand, federal law is not so forgiving.
Under the Controlled Substances Act, 2
marijuana remains illegal under federal law
for almost any purpose, including most
medical research. The conflict between state
laws legalizing the use of marijuana and federal law traps in an ethical quandary attorneys who want to advise cannabis clients.
How can they ethically meet the growing
demand for advice on how to open, license,
and operate businesses that trade in this
gray area between what certain states and
the United States government will allow?
Authorities in the jurisdictions with legal
marijuana statutes on the books have been
busy addressing this need—and Arizona is
Specific Ethics Counsel
In 2011, the Arizona State Bar issued Ar-
izona Ethics Opinion 11-01 (“Ethics Op.
11-01”) in response to the enactment the
AMMA. Ethics Op. 11-01 allows a lawyer
to counsel or assist a client in legal matters
expressly permissible under the AMMA,
“despite the fact that such conduct poten-
tially may violate applicable federal law,” but
only so long as three conditions exist:
• At the time the advice or assistance is
provided, no court decisions have held
that the provisions of the AMMA relat-
ing to the client’s proposed course of
conduct are preempted, void or other-
• The lawyer reasonably concludes that
the client’s activities or proposed activities comply fully with state law requirements.
• The lawyer advises the client regarding
possible federal law implications of the
proposed conduct if the lawyer is qualified to do so, or recommends that the
client seek other legal counsel regarding
those issues and appropriately limits the
scope of the representation.
One of the considerations in the devel-
opment of Ethics Op. 11-01 was that ER
1. 2(d) prohibits Arizona lawyers from coun-
seling clients to engage in criminal or fraud-
ulent conduct. Specifically, ER 1. 2(d) pro-
[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 consequenc-
es 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.
On its face, ER 1. 2(d) would prohibit
a lawyer from assisting cannabis clients in
a variety of otherwise mundane matters. ER
1. 2(d), for example, prohibits setting up any
business that is illegal—under state or federal law—including one that sells marijuana.
States with medical or other legal marijuana
laws have not dealt with the issue presented
in a uniform manner.
One possible approach is to leave those
Counseling the Cannabis Client…
who wanted to grow, sell, or otherwise use
medical marijuana more or less on their own
to determine how to do so in compliance
with the AMMA. In Maine, for instance,
which has both a medical marijuana law
similar to the Act and an almost identical
version of ER 1. 2, the Bar adopted this
approach. Maine Op. 199 (2010)—which
remains unchanged at the time of this ar-
Maine and its sister states may well be
in the vanguard regarding the medici-
nal use and effectiveness of marijuana.
However, the Rule which governs attor-
ney conduct does not make a distinction
between crimes which are enforced and
those which are not. So long as both
the federal law and the language of the
Rule each remain the same, an attorney
needs to perform the analysis required
by the Rule and determine whether the
particular legal service being requested
Without Losing Your
Arizona Law License
Understanding Ethics Opinion 11-01
BY JAMES S. RIGBERG
JAMES S. RIGBERG advises companies on a wide variety of legal
matters related to business operations, including litigation. He is
a member of Dickinson Wright PLLC, in the firm’s Phoenix office.