Representing Clients
Seeking or
Supplying Water to
Cultivate Marijuana –
What is the Legal and
Ethical Buzz
Jeffrey J. Kahn
Matthew Machado
October 9, 2014
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Last sentence of new Comment
14 to Rule 1.2 states:
“In these circumstances,
the lawyer shall1 also
advise the client
regarding related
federal law and policy.”
2
Disclaimers:

I am not a criminal law attorney,
have never been and do not
aspire to be one.

This presentation will not provide
firm guidance on conduct
because there are not firm
answers.
3
Comment 21 to the Preamble to
the Rules of Professional
Conduct states:
“The Comment accompanying each Rule
explains and illustrates the meaning and
purpose of the Rule. The Preamble and this
note on Scope provide general orientation.
The Comments are intended as guides to
interpretation, but the text of each Rule is
authoritative.”
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“RELATED TO FEDERAL LAW
AND POLICY”
Law:
a.
Controlled Substances Act,
21 USC §§801-971 makes
“marihuana” a schedule 1 drug.
See 21 USC §812(c)(c)(10).
See also definition of
“marihuana” at 21 USC
§802(16).
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b.
According to the Act, 21 USC
§812(b), a schedule 1 drug has:
i.
High potential for abuse;
ii.
No current accepted use in
medical treatment;
iii.
Lack of accepted safety for
use of the drug under medical
supervision.
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c.
Other Schedule 1 drugs include
heroin, codeine and morphine.
d.
If you are convicted of a violation
related to the possession, control,
manufacture or distribution of a
Schedule 1 drug, you are subject
to assessment of a fine, a prison
sentence or both.
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Fed Penalties Under the CSA for Marihuana:
http://fas.org/sgp/crs/misc/RL30722.pdf

1000 kilograms or more or 1000 or more plants --fines of $10/50 million; 10 years to life

100 to 999 kilograms or 100 to 999 plants ---- fines
of $5/25 million; 5 to 40 years

50 to 99 kilograms or 50 to 99 plants ---- fines of
$1/5 million; Up to 20 years

Under 50 kilograms, 10 kilograms of hashish, 1
kilogram of hashish oil, or 1 to 49 plants--- fines of
$250,000/$1 million; Up to 5 years
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
So what does this have to do with
practicing water law?

We are dealing with water, not
manufacturing, distributing, or smoking
marijuana.

Problem is that the water will be used to
grow marijuana.

Thus, aiding and abetting a criminal activity.

Same responsibility as a principal in the
enterprise - responsible for any foreseeable
crime.
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Policy
The “Cole Memorandum” (provided in
materials)
1.
Issued August 2013.
2.
Guidance regarding federal marijuana
enforcement.
3.
Can still prosecute any time/any place
for any violation.
4.
8 enforcement priorities.
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Enforcement priorities are:
a.
b.
c.
d.
e.
f.
g.
h.
Prevention of drugs to minors;
Prevention of revenue to gangs/cartels;
Prevention of movement across state lines;
Prevention of use as cover for dealing of
other illegal drugs;
Prevention of violence/use of firearms in the
cultivation or distribution;
Prevention of drugged driving;
Prevention of grow operations on public
lands; and
Prevention of use on federal property.
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Problems:
Only a guide –
still may prosecute
any violation.
 Policy may change in the
future under a different
administration and a different
attorney general.

12
Policy issued by Bureau titled:
“Use of Reclamation Water or Facilities for
Activities Prohibited by the Controlled
Substances Act of 1970” dated May 16, 2014

Cannot use Reclamation water or facilities
to grow marijuana.

If become aware, will report to DOJ.

Will keep records.
13

Reclamation does not have the responsibility
to enforce the CSA.

“Commingled Water. This Policy does not
apply to non-contract water commingled with
contract water in non-Federal facilities.”

Expires May 16, 2015.
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So what are obligations to clients?
1. Advise on Controlled Substance Act.
2. Advise on Cole Memorandum.
3. Advise on Bureau Memorandum.
4. What level of diligence investigation
is necessary by client and/or
attorney?
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Possibilities for diligence investigation:
Determine if Cole Memorandum
enforcement priorities are implicated.
 For instance, within 1,000 feet of a
school?
 Suppose a new grow operation?
 How determine future issues?
 Suppose a “big” operation.
 What does it signal?
 Determine if Bureau water being used?

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How to conduct a diligence
investigation:






Consult a criminal attorney?
Retain an investigator?
Check permits?
Check backgrounds of principals?
Is the client being truthful with you concerning
knowledge about the marijuana operation?
Want to avoid getting sucked into the
“whirlpool” of a federal investigation.
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If client gets “sucked in” and/or is
not properly advised:
1.
Liability of lawyer?
2.
Breach of Rules of Professional
Conduct?
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Conclusion:
1.
2.
3.
Many unanswered questions.
Not unusual in a developing
area of the law.
Will continue to develop – law
and resulting obligations of a
lawyer should become better
defined.
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