Greenway Magazine
by Brandon Dunn
17 Feb 2021

For months, many in the legal community have quietly pondered, analyzed, and dissected a Judicial Comment on Rule 4-1.2 of the Missouri Rules of Professional Conduct which was first published in July 2020.

[8] In counseling or assisting, if a state law conflicts with federal law, the lawyer should advise the client of that fact but cannot (1) undertake conduct that would violate federal law or (2) counsel or assist the client as to how to perform an act that would violate federal law even if that conduct would be lawful under the state statutory or constitutional law. See Rule 4-1.1 and 4-1.4.

While the comment doesn’t specifically cite marijuana businesses, the general consensus has been that the comment is a direct response to the legalization of medicinal marijuana in 2018 and the growth and onset of the industry taking root in Missouri.

Though there has yet to be any disciplinary action taken, most industry professionals had elected to steer away from public comment on the issue.

Dan Viets Photo credit: Chris Smith | Agonist™

That changed over the last week with the dissemination of a letter penned by attorney and Missouri NORML Chairman Dan Viets to the MACDL Board of Directors.

Shortly thereafter social media began to boil over with videos and posts pertaining to the rule comment.

Greenway reached out to Viets for additional comment but has not received a response at this time.

Below is the full original text of Viets’ letter, the emphasis and emboldening of characters are copied from the original.

February 12, 2021

MACDL Board of Directors

Via Email

Re:   Mo. S.Ct. Violates Missouri Constitution?

Dear Friends and Colleagues,

The Missouri Supreme Court has declared in a newly adopted Comment on Rule 4-1.2 of the Missouri Rules of Professional Conduct that it will discipline attorneys who either participate directly or advise and assist others in taking actions pursuant to Article XIV of the Missouri Constitution, Missouri’s Medical Marijuana Law.

The Missouri Constitution at Article XIV, Section 1.5 (8) states, “An attorney shall not be subject to disciplinary action by the state bar association or other professional licensing body for owning, operating, investing in, being employed by, contracting with, or providing legal assistance to prospective or licensed medical marijuana testing facilities, medical marijuana cultivation facilities, medical marijuana dispensary facilities, medical marijuana-infused products manufacturing facilities, qualifying patients, primary caregivers, physicians, health care providers or others related to activity that is no longer subject to criminal penalties under state law pursuant to this section”.

The Missouri Supreme Court’s new Comment [8] to Rule 4-1.2 says, “In counseling or assisting a client, if a state law conflicts with federal law, the lawyer should advise the client of that fact but cannot (1) undertake conduct that would violate federal law or (2) counsel or assist the client as to how to perform an act that would violate federal law even if that conduct would be lawful under the state statutory or constitutional law.  See Rules 4-1.1 and 4-1.4”.  (Emphasis added).

It strikes me as rather extraordinary that the Missouri Supreme Court would declare that it will discipline attorneys for conduct that is lawful under the Missouri Constitution.  After all, the Missouri Supreme Court only exists because of the Missouri Constitution and all of its authority derives from the people through the Missouri Constitution!

As far as I am aware, no other state has taken such action.  It seems that attorneys licensed in Missouri are now prohibited from assisting patients or caregivers or businesspeople wishing to operate in conformance with Article XIV, since any possession or other activities involving cannabis do still violate federal law.

Of course, the federal authorities don’t care.  There has been no prosecution or any threat of prosecution for activity pursuant to Article XIV from any of the offices of the Department of Justice since Article XIV was passed in November of 2018 with support from 66% of Missouri voters.

 I believe that we are forced to withdraw from representing individuals and business entities in their appeals of their denials of commercial medical marijuana licenses.  I am now hesitant to even advise a medical marijuana patient how to obtain a medical marijuana card under Article XIV.

Since the Missouri Supreme Court is the final authority on the interpretation of the Missouri Constitution, it seems to me there really is no recourse in this situation, at least while the present members of the Supreme Court of our state remain on the Court.

I would very much appreciate your thoughts on this anomalous situation.

Thank you.

Sincerely,

Dan  Viets

DV:ck/mb

 

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