Marijuana ballot initiatives won big on election night 2016. As recently reported in the Washington Post, voters in California, Massachusetts and Nevada approved recreational marijuana initiatives. And, voters in Florida, North Dakota and Arkansas just approved new medical marijuana initiatives. Washington Post Article
Texas-84th Legislative Session
What is not as well known is that medical marijuana came to Texas in the last legislative session-in a small way.
As noted by the Marijuana Policy Project, the 84th Texas legislative session included five bills which would have reduced penalties for possession of marijuana (including one which would have made access for consenting adults completely legal.) None of those bills made it out of committee and to a vote. However, there were also four medical marijuana bills, one of which became law in Texas-the Compassionate Use Act. Summary of Texas Bills
The Lawyer’s Dilemma
When the dust settles on the 2016 election, more than twenty percent of Americans will now live in states where recreational marijuana use is legal, and it now appears that 29 states will allow cannabis use for certain medical conditions-including Texas. See Fox Rothschild eBook summary of state-by-state marijuana laws
However, marijuana remains a schedule I drug, along with heroin, and possession or distribution remains a serious felony under federal law.
The professional rules of conduct in most states, including Texas, prevent an attorney from counseling a client to engage, or assist a client, in conduct 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. How can an attorney counsel a client in the cannabis business under these conditions?
How are state bars and legislators dealing with the potential conflict in the law and ethical rules when cannabis has been made legal in a particular state?
The short answer is they are changing their professional rules of conduct in most cases. My partner, Joshua Horn recently wrote an excellent post on this topic-which you can find here- Post
A recent Gallup poll found that sixty percent of Americans are now in favor of legalization of cannabis use. Gallup Poll
As Texas inevitably begins to cope with the realities of the inherent conflict between the existing state and federal laws in this area, and the trap posed by the rules of ethics, it will prove interesting to see how the Texas bar deals with this dilemma for Texas lawyers.