David Burr demonstrates removing leaves on marijuana plants to allow more light for growth at a Las Vegas marijuana-growing facility. (Ethan Miller/Getty Images)
LINCOLN — Marijuana may be illegal in Nebraska, but a lawyer from the Cornhusker State is free to invest in cannabis operations in states where it is legal, a state ethics board is advising.
The eight-member Nebraska Lawyer’s Advisory Committee, which issued an advisory on Thursday, usually weighs in on technical matters concerning the practice of law, such as whether conflicts of interests exist and the duty to represent clients.
But the legalization of medical marijuana in adjacent South Dakota prompted a couple of questions from a Nebraska attorney recently.
Rules of conduct
The attorney, who was not named in the advisory opinion, asked if they could invest in a medical cannabis business in another state, where such marijuana is legal, without violating the state’s Rules for Professional Conduct for lawyers. Another question: If they couldn’t invest, could their spouse?
The lawyer also wondered if they could advise a business owner who had workers who lived in a state such as South Dakota or Colorado, where marijuana was legal, on employment issues?
A split decision
The committee, in a split decision, said that such investments would not violate the code of conduct.
The majority opinion noted that medical marijuana is legal in 37 states and that Congress has blocked federal authorities from enforcing the federal prohibition against marijuana in states that have deemed it legal. Nineteen states, two U.S. territories and the District of Columbia have legalized cannabis for recreational use, according to the National Conference of State Legislatures.
“Merely investing in a cannabis company, which presumably operates within the bounds of the applicable state laws, does not in our opinion rise to the level of a criminal act, nor does such conduct reflect adversely on the lawyer’s honesty, trustworthiness, or fitness to practice ….” said the majority opinion from the advisory committee.
It noted that ethics committees in two other states, New York and Washington, have reached similar conclusions and that the committee had no power to advise nonlawyers, such as spouses.
Supreme Court should weigh in
But dissenters on the committee said the since marijuana is illegal in Nebraska and technically illegal federally, it would be an ethical breach.
However, the dissenters — who were not identified — suggested that the questions be referred to the Nebraska Supreme Court so it could address the issue “head on by making a rule upon which Nebraska lawyers can rely.”
The Supreme Court, the dissenters noted, is the “final authority” on ethical issues involving lawyers.
Mark Weber with the State Counsel for Discipline’s office declined to name the attorney who asked for the advisory, or who on the eight-member committee were in the majority or minority, saying that such information was confidential.
Rare dissenting opinion
He did say that it was the first lawyer advisory he could recall that included a dissenting opinion.
Norfolk attorney David Copple, who chairs the advisory committee, did not immediately return a message seeking comment on Thursday.
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