Pubdate: Fri, 25 Sep 2015
Source: Honolulu Star-Advertiser (HI)
Copyright: 2015 Star Advertiser
Contact: 
http://www.staradvertiser.com/info/Star-Advertiser_Letter_to_the_Editor.html
Website: http://www.staradvertiser.com/
Details: http://www.mapinc.org/media/5154
Author: Richard Borreca

MEDICAL MARIJUANA MEETS ANOTHER HURDLE IN HAWAII

Small amounts of marijuana are not a big deal to the federal government.

FBI teams will not be rappelling onto your roof because you are 
holding a joint.

But holding that joint is still against federal law and that is 
creating new problems for Hawaii's embryonic medical marijuana business.

Lawyers' rules of ethics and professional conduct don't allow lawyers 
to advise clients to engage in conduct that is illegal.

A month ago the Disciplinary Board of the Hawaii Supreme Court came 
out with Formal Opinion 49, saying Hawaii attorneys "may not provide 
legal services to facilitate the establishment and operation of a 
medical marijuana business."

As the board notes, lawyers telling clients how to set up the 
business "would be assisting the client to commit a federal crime."

No matter that this year's Legislature passed a 77page law detailing 
how the state Health Department will allow medical marijuana 
dispensaries to be formed to provide patients with medical marijuana.

Noting that Congress has not changed federal law to exempt the 
state-authorized production and distribution of marijuana, and that 
the state Supreme Court has not given its own exemption to Hawaii 
attorneys, the disciplinary board says local lawyers cannot "assist a 
client in conduct the lawyer knows to be criminal."

Former Honolulu mayor and long-time city prosecutor Peter Carlisle, 
who is representing one of the firms hoping to win a local dispensary 
license, says lawyers are fuming.

"There are tons of groups. I wasn't aware of how many until this 
opinion came out. There are going to be many, many applications and 
very few licenses, just three on Oahu, for instance," Carlisle said 
in an interview this week.

At least nine states, including Washington and Colorado, which have 
both legalized possession of small amounts of marijuana, have drafted 
new rules for lawyers to remove the ethical problem.

State Rep. Della Au Belatti, an attorney and Health Committee 
chairwoman who helped write Hawaii's medical marijuana dispensary 
law, said the ruling is forcing attorneys to stop advising clients.

"This doesn't change the law, but it makes Hawaii businesses and 
residents vulnerable because they can't get the legal advice they 
need to set up a business properly and that ends up harming 
patients," Au Belatti said.

Asked why the Legislature didn't put in a provision saying it was OK 
for lawyers to get involved, Au Belatti explained that as a rule, a 
state Legislature doesn't tell the courts how to handle disciplinary 
matters, adding that lawyers govern their own ethical conduct and it 
became a separation-of-powers issue.

Having the Legislature tell the Supreme Court to change the rules of 
conduct would be viewed as a "nuclear option," Belatti said.

But, because this involves lawyers, the problem quickly becomes complicated.

Au Belatti said there are even worries that state attorneys could say 
they cannot even draft state rules and regulations because they would 
be approving a criminal activity.

Carlisle reported that he is working with other lawyers to have the 
state Supreme Court issue a comment saying it was proper behavior, 
without touching on the entire issue of medical marijuana or the 
federal government.

Until that happens, Hawaii's medical marijuana law is a work not in progress.
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MAP posted-by: Jay Bergstrom