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 77-page 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.

Richard Borreca writes on politics on Sundays, Tuesdays and Fridays. Reach him at rborreca@staradvertiser.com.