To Discipline or Not to Discipline: A Framework for New Mexico to Analyze the Ethics of Medical Marijuana Representation

What are lawyers to do when their obligations to clients conflict with their obligations to the law? How are state ethics systems expected to manage conflicting obligations to state and federal law? This article explores the ethical conundrum of medical marijuana representation in New Mexico. The New Mexico advisory ethics opinion counseled lawyers to avoid “assisting” medical marijuana businesses, but did not clarify what type of conduct qualified as “assistance.” In addition, the New Mexico Supreme Court refused to adopt Rule 16-102(E), which would have carved an exception in the New Mexico Rules of Professional Conduct for assistance of medical marijuana businesses. The lack of clarity leaves New Mexico lawyers and medical marijuana businesses with uncertainty. In the wake of the advisory ethics opinion, this article will explore the ethical challenges posed to New Mexico lawyers who choose to represent medical marijuana businesses. This article will describe New Mexico’s medical marijuana regulatory regime, including public policy considerations of restricting representation for businesses. In addition, this article will discuss the varying ways different states have approached the medical marijuana ethics conundrum. The final section of the article will present and apply a framework for analyzing the ethical problem in New Mexico. The article will draw principles from different ethics advisory opinions and apply them to the unique legal environment of New Mexico