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Alaska Lawyers, Pot, and Ethics: Here's What You Need to Know

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By Mark Wilson, Esq. on January 05, 2015 12:28 PM

Quit harshing my mellow! Now that recreational marijuana will soon be legal (under state law) in The Last Frontier, can attorneys advise clients on getting into the pot business? After all, it's still illegal under federal law.

Yeah, that's great. But the thing that lawyers really want to know is: Can I smoke, too?

Schmoke and a Pancake?

Don't worry, the Alaska State Bar has your back. An informal preliminary opinion analysis prepared by the state bar's ethics committee reinforces an Alaska's lawyer's right to toke up every now and then.

In fact, it doesn't change very much: As the opinion notes in the outset, Alaskans have had a state constitutional right to smoke marijuana since 1975, federal laws notwithstanding. And in case you were scared, "[n]o Alaska lawyer has ever been disciplined for discrete and private use of marijuana."

Basically, marijuana is the same as any other intoxicant, like alcohol. It's here that the opinion cautions, "Excessive marijuana usage that affects one's practice would be a very different matter."

What About My Clients?

It's true that, even though pot is legal under state law, advising a client about how to operate a marijuana business that's legal under state law would be a violation of federal law. This thornier problem is expected to be addressed by amendments to the state's rules of professional conduct, forthcoming in 2015. As a catch-all insurance policy, the opinion recommends advising clients about both state and federal law.

One step further than advice is assisting with the formation of a pot-related business. This, too, appears to be ethical. And one step further than that is investing in the business. As far as the ethics committee was willing to go, it draws the line here, because of the uncertainty of the conflict between state and federal law. Absent a change in the law or advice from the state supreme court, "a lawyer should exercise caution and not become directly involved in operating a business that remains illegal under federal law."

The Lowdown

So, it's OK to smoke up in the privacy of your home, it's OK to advise clients on their small-time pot business, and it's OK to provide "the same types of business law services a lawyer could provide to any other legal business." But that's the ethical boundary. Until further notice, don't actually participate in the business.

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