Hugh McQuaid Photo
Diane W. Whitney (Hugh McQuaid Photo)

A panel of lawyers Friday explored the legal minefield Connecticut’s medical marijuana statute presents for attorneys representing clients seeking to produce and distribute a product permitted by the state but prohibited by the federal government.

The discussion was part of a forum at the University of Connecticut School of Law in Hartford, centered around “demystifying” the state’s medical marijuana policy.

Connecticut’s medical marijuana program has been touted as one of the most tightly regulated programs of its kind and an August U.S. Department of Justice memo suggested the federal government is unlikely to crack down on the state any time soon.

However, marijuana is still classified as an illegal and dangerous drug nationally. That classification presents ethical and practical challenges for lawyers who represent clients seeking to establish the marijuana growing facilities and dispensaries necessary for the new program to work.

“I feel a little bit like I’m the one out in the trenches right now, tiptoeing through landmines,” said Diane W. Whitney, an attorney with Pullman & Comley.

Whitney represents a client looking to be licensed to establish a marijuana growing facility and some dispensaries in Connecticut. The federal government’s prohibition of what her client’s goal presents ethical and risk-management concerns, she said.

“Unlike with other clients, there are certain things that we will not do for this client. And every step of the way — including whether I could be here to speak today — requires the approval of our risk management committee,” she said.

John Logan, chair of Connecticut Bar Association Professional Ethics Committee, said there are no clear-cut or easy answers for lawyers working in Connecticut’s fledgling medical marijuana industry.

Hugh McQuaid Photo
John Logan (Hugh McQuaid Photo)

He said the Ethics Committee took up part of the issue and arrived at an opinion that he read for those attending the symposium: lawyers may advise clients on the state medical marijuana law and they may not assist clients in conduct violating federal law.

“Lawyers should carefully assess where the line is between those functions and not cross it,” Logan said as he finished reading. The last part drew laughs from some in a crowd of attorneys and law students.

“That’s a pretty good punt. That’s about a 60-yard punt,” Logan said. “I guess in the long run, all of us as lawyers are responsible for our own conduct, and we did punt it back to the lawyers.”

Logan said the rules governing lawyer conduct do not differentiate between crimes that the government enforces and those it does not. So attorneys must determine for themselves whether the services their clients are requesting amount to helping someone violate federal law.

Whitney said the Justice Department’s memo on enforcement priorities, issued in August, was comforting in that it suggested the feds were not interested in prosecuting people involved with tightly regulated marijuana programs like Connecticut’s. However, the memo was not a concrete assurance, she said.

Chief State’s Attorney Kevin Kane said prosecutors cannot just announce that they are not going to enforce an existing law. But they can set priorities for which laws they want to devote limited resources to prosecute, he said.

“I don’t see how the Justice Department can say anything more than they said. In the end it’s going to be up to Congress” to determine how drugs should be classified, he said.

Hugh McQuaid Photo
Chief States Attorney Kevin Kane (Hugh McQuaid Photo)

In some cases, Whitney said the DOJ memo also helped convince municipalities to agree to allow marijuana facilities within their borders. However, she said it has been a challenge to get zoning approval in many towns. Much of that resistance stems from the federal prohibition, she said.

“I’m constantly saying to municipalities ‘This is not California. I know you’ve heard horror stories about California. We are very different here in Connecticut.’ The message has not gotten through as well as I might have hoped,” she said.

Whitney said her client had an application for a dispensary in Fairfield denied after several opposition ads ran in newspapers. Many towns have passed moratoriums on marijuana facilities while others have created new regulations dictating where such a facility can be placed, she said.

The new regulations often require dispensaries to be located in industrial zones. Whitney said she thinks the requirement is a mistake.

“These are basically pharmacies for critically ill people. To put them in an industrial zone, I think, gives the wrong message,” she said.

Whitney said growing facilities seem to be easier to get approved. She said her client received approval for one in West Haven. She speculated the growing facilities are easier to site based on the availability of vacant warehouse or manufacturing space.