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January 15, 2021 Feature

Ethical Issues for Lawyers and Judges in the State Approval of Cannabis: One Toke over the Line?

By Dennis A. Rendleman

One toke over the line, sweet Jesus / One toke over the line / Sittin’ downtown in a railway station / One toke over the line / Awaitin’ for the train that goes home, sweet Mary / Hopin’ that the train is on time / Sittin’ downtown in a railway station / One toke over the line1

As of November 4, 2020, it appears that 38 states and the District of Columbia will or do permit the manufacture, distribution, and use of either recreational or medical marijuana or a combination. Additionally, several states decriminalize other drugs.2 On December 4, 2020, the U.S. House of Representatives passed broad legislation that would remove cannabis from the Controlled Substances Act, provide for expungement of non-violent marijuana convictions, and spark numerous additional social/criminal justice initiatives. Prospects for Senate passage are said to be doubtful.3

Regardless, the current federal Controlled Substances Act, 18 U.S.C. §§ 801 et seq., prohibits the production, distribution, sale, use, or possession of marijuana. The federal statute provides no exception for medical or other uses authorized or regulated by state law.4

The Preamble/Scope Statement of the ABA Model Rules of Professional Conduct states: “The Rules of Professional Conduct are rules of reason. They should be interpreted with reference to the purposes of legal representation and of the law itself.”5 The ABA Model Code of Judicial Conduct states: “The Rules of the Model Code of Judicial Conduct are rules of reason that should be applied consistent with constitutional requirements, statutes, other court rules, and decisional law, and with due regard for all relevant circumstances.”6

The federalism conflict caused by contradictory state and federal laws creates ethical conundrums for lawyers and judges.

Conflicting Cannabis Laws

While federalism is a fundamental component of the U.S. Constitution, the most significant area where concurrent authority exists is in criminal law. But there has been a long history of contradictory laws governing cannabis.7

For most of American history, marijuana was legal to grow and consume. Beginning in the 1910s, however, a number of states moved to criminalize the drug for the first time. . . . During the 1920s and 1930s, marijuana came to be associated in the public imagination with both crime and black and Hispanic migrant workers. . . . In 1937 . . . , Congress passed the Marijuana Tax Act, which led to dropping marijuana from the Federal Pharmacopoeia, the list of permissible medicines approved by the federal government. [T]he American Medical Association (“AMA”) opposed the reclassification of marijuana, . . . [W]ith the passage of the CSA [Controlled Substances Act] in 1970 [m]arijuana was classified, along with LSD, heroin, and other serious narcotics as a Schedule I drug, defined as a drug with a high likelihood of addiction and no safe dose. Under the CSA, the manufacture, distribution and possession of Schedule I narcotics is prohibited and punishments can extend to life in prison for large volume manufacturers and dealers.8

Reacting to the public policy changes by the electorates of individual states, in 2013, Congress prohibited the U.S. Department of Justice from using any money to prosecute cases involving the use of medical marijuana where such had been legalized under state law.9 In July 2020, the U.S. Court of Appeals for the Ninth Circuit upheld an order enjoining the federal government from prosecuting two California marijuana growers. The case confirmed the congressional prohibition on use of federal funds to prosecute those involved in medical marijuana.10

However, the wall between federal law and state law seems to hold strong when there is no other option. In United States v. Schostag,11 the U.S. Court of Appeals for the Eighth Circuit upheld a district court ruling denying the defendant’s motion to modify his parole. Schostag was prescribed medical marijuana under Minnesota law for treatment of chronic pain. On supervised release for possession of a firearm and attempted possession of methamphetamine, the use and/or possession of marijuana was prohibited, even for medical purposes. Because the federal law still prohibited marijuana, the fact that Minnesota authorized medical marijuana was insufficient to change the conditions of parole.12

A further example of the conundrum is found by the action of the federal district court in Colorado. The federal court had followed the practice of adopting the Colorado Rules of Professional Conduct in “lockstep” with the state. However, upon the state’s adoption of Comment 14 to Colorado Rule 1.2(d) that allowed Colorado attorneys to assist clients with conduct permitted under the Colorado marijuana laws, but not under federal law, the federal court diverged. Instead of adopting Colorado Comment 14, the federal court limited the attorney’s conduct to advising the client. This has been interpreted to mean not assisting the client in any conduct.13

A Lawyer May Ethically Advise a Client When State and Federal Laws Conflict

It is the opinion of this author that a lawyer does not violate the Model Rules of Professional Conduct, specifically Rule 1.2(d)14 or Rule 8.4(b),15 when a lawyer advises and/or assists a client under state law in operating or withdrawing from a business of medical or recreational marijuana to the extent that it is authorized by that jurisdiction. As do several of the state ethics opinions, the author recognizes that the lawyer who provides legal advice and services to a client in the cannabis business must be extremely careful and fully advise the client of the conflicting laws and the risks and challenges resulting. Indeed, Rules 1.1: Competence16 and 1.4(a)(2) and (b): Communication17 mandate such conduct by the lawyer.

The conflict that exists between federal law and now 39 jurisdictions over cannabis was never contemplated by the drafters of Rule 1.2(d). Rather, the rule contemplates legality as a binary concept—a more straightforward situation where a client intends direct illegality, such as that discussed in ABA Formal Opinion 463 (Client Due Diligence, Money Laundering and Terrorist Financing).18

The conundrum becomes more complex when normal client services happen to involve a marijuana business allowed by state law. For example, a lawyer who served as general counsel for two medical marijuana dispensaries was publicly censured in Colorado. The lawyer had established Interest on Lawyers’ Trust Accounts accounts at a bank to use for paying taxes and bills for each of the dispensaries. However, the bank did not allow accounts relating to cannabis businesses.19 Though the lawyer knew of the bank’s policy, he did not disclose the purpose of the accounts to the bank. Consequently, the lawyer was found to have violated Colorado Rule 8.4(c) prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation (comparable to ABA MRPC Rule 8.4(c)).20

Insight is found in Comment [9] to Rule 1.2(d):

Paragraph (d) prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.21

Moreover, Model Rule 2.1 adds further perspective:

In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.22

Excerpts from Model Rule 2.1, Comments [1] and [2] are on point:

A client is entitled to straightforward advice expressing the lawyer’s honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. . . . However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client. . . . Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations . . . are predominant.23

What Is the Crime?

The focus heretofore has been on the distinction between the federal Controlled Substances Act and various state laws making the use of medicinal and/or recreational marijuana legal or decriminalized. It has been argued that lawyers who counsel or assist a client in any state marijuana-related activities may be charged with federal crimes of aiding, abetting, or being an accessory to a crime or a co-conspirator. This is particularly possible for, as Tom Wolfe quoted a New York judge in The Bonfire of the Vanities, “a grand jury would ‘indict a ham sandwich,’ if that’s what you wanted.”24

This author has discovered only one U.S. lawyer who has been charged in connection with representation of a client engaged in a marijuana business.25 And that appears to have been more based on local politics than actual criminal conduct. First, it was San Diego, California; second, the prosecutor was a high-profile political figure who opposed the legalization of medical marijuana and who resigned from office to run for higher office in the midst of the case after California had voted to allow recreational marijuana. The prosecutor sought to search the lawyer’s client files to find evidence to support a claim that the lawyer removed evidence from the client’s facility prior to a medical marijuana facility inspection. The illegal conduct alleged against the client was processing of pot-infused products such as topical creams and canisters for vaping that were allegedly illegal under the medical marijuana law.26

While this demonstrates the risks a lawyer may encounter in a hostile environment, it also illustrates why a marijuana client needs legal advice. No disciplinary action was ever taken against the lawyer.

As noted above, Model Rule 1.2(d) was intended by the drafters to prohibit a lawyer assisting a client in clear criminality. This is an application of the language in Rule 1.2(d) colloquially referred to as the “good faith exception.” The rule explains that a lawyer “may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

ABA Formal Opinion 85-352 addressed the somewhat analogous question of a lawyer’s ability to advise and advocate for a client on the preparation of tax returns. At issue was how “aggressive” a lawyer could be in pursuing positions that were not explicitly stated in prior rulings by the Internal Revenue Service. After advising that the ethical standards for tax matters were no different than for any other civil matter, the committee concluded that, on this question, there was no difference between the roles of “advisor” and “advocate.” While there are particular practices in the field of taxation, the general principle remains that a lawyer may advise and represent a client by pursuing a course of conduct in filing a return that the lawyer in good faith believes is “warranted in existing law or can be supported by a good faith argument for an extension, modification or reversal of existing law.”27

Judicial Ethics

Perhaps the most interesting case involving cannabis and a state court judge occurred in Illinois as a lawyer disciplinary matter. In 1996, attorney Frank Edwards was vacationing in Belize. While traveling through the Belize airport awaiting a connecting flight, Edwards was arrested for possession of cannabis. He pled guilty and was fined by the Belize court. During the time of the Belize vacation, Edwards was serving as a circuit court judge presiding over narcotics cases in Cook County, but his appointment expired prior to the disciplinary prosecution. An agreed disposition of reprimand for violations of Illinois Rules 8.4(a)(3), commission of a criminal act reflecting adversely on fitness to practice, and Rule 8.4(a)(5), conduct prejudicial to the administration of justice, was entered by the Illinois Attorney Registration and Disciplinary Commission.28

The ABA Model Code of Judicial Conduct29 does not include any provision that is analogous to Model Rule 1.2(d). However, the Model Code does include an analogy to Model Rule 8.4(b) & (c): Model Code Rule 1.1: Compliance with the Law: “A judge shall comply with the law, including the Code of Judicial Conduct.” Further, and more indirectly, is Model Code Rule 3.1: Extrajudicial Activities in General: “A judge may engage in extrajudicial activities, except as prohibited by law or this Code.”

There have been cases and opinions relating to judges and cannabis. For example, New York Judicial Ethics Opinion 18-169 (Dec. 2018) concluded that a judge may be a shareholder/passive investor in an entity that will broker cannabis licenses in other states but may not be a founder or involved in the active management of the entity.30 Similarly, California Advisory Opinion 2017-10 concluded that a judge may have no interest in any cannabis-related business.31 Washington State opined that a judge could not permit a court employee to own a medical cannabis dispensary, though the business complied with the state’s legal regulatory provisions, because of the continuing existence of the federal law.32

State judicial codes of conduct are not consistently based on the current ABA Model Code of Judicial Conduct. Many are based on the 1990 ABA Model Code of Judicial Conduct. The 1990 Code is also the basis for the Code of Conduct for U.S. judges.33 There are no opinions interpreting the federal code regarding cannabis.

Personal Use of Cannabis by Lawyers and Judges

There have been cases of discipline for both lawyers and judges who personally use cannabis—both recreationally and medicinally. For example, Colorado Judicial Ethics Advisory Board issued an opinion on July 31, 2014. The opinion notes that the Colorado Code of Judicial Conduct requires judges to comply with the law. While the Colorado Code does not specify federal law as well as state law, the committee concluded that compliance with federal law was implicit in the principle of the rule. The Colorado Code Rule 1.1(A) is identical to ABA Model Rule 1.1. But Colorado Code includes a Rule 1.1(B) that excludes “minor” violations of the law as a violation of the Code. However, the Colorado committee concluded that any use of marijuana authorized by Colorado law was not a “minor” violation of the law because of the existing federal law.34

Other cases relating to personal use of cannabis have, like the Edwards case cited above, all occurred prior to state legalization and frequently involved other misconduct and/or convictions.

There have been few disciplinary cases or ethics opinions regarding lawyer use of cannabis in connection with state legalizations. One opinion and one disciplinary case are particularly interesting.

The State Bar Association of North Dakota Ethics Committee Opinion No. 14-02 concluded that it was a violation of the North Dakota Rules of Professional Conduct for a lawyer to use medical marijuana prescribed by a Minnesota physician and be licensed to practice in North Dakota. “Attorney’s conduct (participating in a medical marijuana treatment program) would constitute a ‘pattern of repeated offenses’ that indicates indifference to legal obligations and constitutes a violation of N.D.R. Prof. Conduct 8.4(b).”35

In a similar cross-border marijuana issue, an Illinois lawyer was reprimanded based on a guilty plea to a Michigan felony of conspiracy to manufacture and deliver marijuana reduced after Michigan’s delayed sentence probation to the misdemeanor office of maintaining a drug house. The facts were that the Illinois lawyer was sharing a Michigan home with a girlfriend. Both had Michigan Medical Marihuana [sic] cards authorizing possession of 2.5 ounces of usable cannabis and growing up to 12 plants. As the relationship disintegrated and the Illinois lawyer returned to his Illinois residence, the Michigan girlfriend grew more than 100 plants and manufactured marijuana products. The girlfriend then mailed a package of marijuana product to the lawyer’s Illinois residence.36

Whether a lawyer would be disciplined for personal use of marijuana in a state that has authorized the use of cannabis remains an open question.

But for judges, the default guidance for a judge’s personal use of cannabis is found in Alaska Advisory Opinion 2018-1:

As long as federal law criminalizes marijuana use, Alaska judges who choose to use marijuana will violate the Alaska Code of Judicial Conduct. Marijuana use violates federal law and its use by a judge would reflect a lack of respect for the law by showing a selective attitude towards the law suggesting that some are appropriate to follow but others are not. Public use of marijuana by a judge would further create an appearance of impropriety. This restriction on judges, even in their personal use in the home, is reasonable and necessary to preserve public confidence in the judiciary.37


The continuation of this conflict between federal and state law on cannabis usage is untenable. As there are now 39 jurisdictions authorizing use, it is incumbent on the federal government to change the Controlled Substances Act and remove marijuana’s erroneous categorization as a Schedule I substance. Until that happens, judges and lawyers are stuck within the legal conundrum.

A lawyer does not violate the Model Rules of Professional Conduct, particularly Rules 1.2(d) and 8.4(c), by advising and/or representing a client in establishing, operating, or withdrawing from a medical or recreational business involving marijuana permitted by state law despite the existence of a conflict in laws between federal, state, and/or local jurisdictions. However, it is incumbent on the lawyer to fully inform the client of such conflicts and the potential risks involved. To do otherwise would deprive the client of legal advice and representation when it is most needed.

But for both lawyers and judges, personal use creates a more complicated, amorphous, and ambiguous environment. Perhaps the words spoken by the late Robin Williams in the film Dead Poets Society fit this unresolved conundrum: “There’s a time for daring and there’s a time for caution, and the wise man understands which is called for.”38

The views expressed herein are solely those of the author and not those of the American Bar Association, the Standing Committee on Ethics and Professional Responsibility, or the ABA House of Delegates, unless otherwise stated. Thanks particularly to Natalia Vera, Mary McDermott, and Cynthia Gray for their assistance.

An earlier version of this paper was published in the Center for Professional Responsibility, The Professional Lawyer,


1. Brewer & Shipley, One Toke over the Line (Universal Music Publ’g Grp. 1970).

2. Alicia Wallace, These States Are Voting on Cannabis Legalization This November, CNN Bus. (Sept. 12, 2020), See also Live Marijuana Election Results, Marijuana Moment (Nov. 3, 2020),; Thomas Fuller, Oregon Decriminalizes Small Amounts of Heroin and Cocaine; Four States Legalize Marijuana, N.Y. Times (Nov. 7, 2020),


4. Melia Robinson, It’s 2017: Here’s Where You Can Legally Smoke Weed Now, Bus. Insider (Jan. 25, 2019),

5. Model Rules of Prof’l Conduct pmb. & scope ¶ [14] (2020).

6. Model Code of Jud. Conduct scope ¶ [5] (2011).

7. Erwin Chemerinsky, Jolene Forman, Allen Hopper & Sam Kamin, Cooperative Federalism and Marijuana Regulation, 62 UCLA L. Rev. 74 (2015).

8. Id. (internal citations omitted).

9. See Memorandum from James Cole, Deputy Att’y Gen., for all U.S. Attorneys, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013), available at [hereinafter Cole Memo]; Brandi Kellam, Trump’s Attorney General Nominee May Shift Policy on Marijuana Enforcement, CBS News (Jan. 18, 2019),

10. United States v. Pisarski, No. 17-10428, 2020 U.S. App. LEXIS 21564 (9th Cir. July 10, 2020).

11. 895 F.3d 1025 (8th Cir. 2018).

12. A comparable conflict arises for colleges and universities that receive federal funds (which includes student aid). Even though state law may authorize medical or recreational marijuana, a university must abide by federal law—not just the CSA, but also the federal Drug Free Campus Act and the Smoke Free Campus Act. See, e.g., Marissa Plescia, Medical Marijuana Legal in Illinois, Illegal on Campus, Daily Illini (Oct. 29, 2018),

13. Lino Lipinsky, Law Week: New Federal Ethics Rule Precludes Colorado Attorneys Practicing in U.S. District Court from Assisting Clients in Complying with State Marijuana Laws, CBA CLE Legal Connection (Dec. 15, 2014),

14. Model Rules of Prof’l Conduct r. 1.2(d) (2020):

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.

15. Id. r. 8.4(b): “It 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.”

16. Id. r. 1.1: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”

17. Id. r. 1.4(a)(2) & (b).

18. The Model Rules of Professional Conduct and the ABA Voluntary Good Practices Guidance for Lawyers to Detect and Combat Money Laundering and Terrorist Financing (Good Practices Guidance) are consistent in their ethical principles, including loyalty and confidentiality. The Good Practices Guidance provides information to help lawyers recognize and evaluate situations where providing legal services may assist in money laundering and terrorist financing. By implementing the risk-based control measures detailed in the Good Practices Guidance where appropriate, lawyers can avoid aiding illegal activities in a manner consistent with the Model Rules.

19. The Department of Justice issued a memorandum discussing its policy on prosecution of financial crimes in connection with cannabis business. See Memorandum from James Cole, Deputy Att’y Gen., for all United States Attorneys, Guidance Regarding Marijuana Related Financial Crimes (Feb. 14, 2014), Ironically, the Colorado credit union that sought approval from the Federal Reserve was successful in litigation to obtain federal recognition. Fourth Corner Credit Union v. Fed. Reserve Bank of Kan., 861 F.3d 1052 (10th Cir. 2017). Subsequent to the reverse and remand ordered by the 10th Circuit and in settlement of the matter, the Federal Reserve Bank of Kansas City granted, with conditions, the Colorado credit union a “master account” required to do business with other banks. Thomas Mitchell, Marijuana Credit Union Granted Conditional Account by Federal Reserve Bank, Westword (Feb. 9, 2018), Review of bank practices reveals numerous banks, including industry leaders, have accepted business from the marijuana industry. See Tom Angell, More Banks Working with Marijuana Businesses, Despite Federal Moves, Forbes (June 14, 2018), Indeed, Treasury Secretary Steven Mnuchin has suggested in several appearances before congressional committees that he would like to see marijuana businesses be able to access banking services. Tom Angell, Trump Treasury Secretary Wants Marijuana Money in Banks, Forbes (Feb. 6, 2018),

20. People v. Furtado, No. 15PDJ056, 2015 Colo. Discipl. LEXIS 100 (Colo. Nov. 2, 2015).

21. Model Rules of Prof’l Conduct r. 1.2(d) cmt. [9] (2020).

22. Id. r. 2.1.

23. Id. r. 2.1 cmts. [1] & [2].

24. Tom Wolfe, The Bonfire of the Vanities (1987).

25. There have been a few cases where lawyers were disciplined for conduct related to their personal use of marijuana; see, e.g., In re Edwards, 97 CH 28 (Ill. Aug. 12, 1997); In re Barton, 22 DB Rptr. 266 (Ore. 2008); In re Quinlisk, 2016PR00091 (Ill. 2017).

26. See, e.g., Jonah Valdez, San Diego DA’s Prosecution of Pot Attorney Has Sent Chills Through the Legal Community, Voice of San Diego (Aug. 9, 2017),; Jesse Marx, DA Drops Felony Charges Against Lawyer Who Defended Marijuana Businessman, Voice of San Diego (July 24, 2018),

27. ABA Formal Ethics Op. 85-352.

28. In re Edwards; Disciplinary Reports and Decisions, Att’y Regis. & Disciplinary Comm’n,

29. Model Code of Jud. Conduct (2019),



32. Wash. Ethics Op. 15-02 (July 20, 2015),

33. Code of Conduct for United States Judges, U.S. Cts.,

34. C.J.E.A.B. Advisory Op. 2014-01 (July 31, 2014),

35. State Bar Ass’n of N.D. Ethics Opinion No. 14-02 (Aug. 12, 2014),

36. In re Quinlisk, Commission No. 2016PR00091,

37. Alaska Advisory Op. #2018-01 (Oct. 9, 2018),

38. Dead Poets Society (Touchstone Pictures 1989),

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Dennis A. Rendleman


Dennis A. Rendleman is former ethics counsel at the American Bar Association, Chicago.