Advisory Opinion: 2076

Year Issued: 2004

RPC(s): RPC 1.2(d), 3.1., 8.4(b), 21 U.S.C. Section 381(d)(1)

Subject: Lawyer wishes to obtain prescription drugs in Canada and return with them to the United States

The inquirer asks the committee to opine about an ethical dilemma based on the following:

Facts
United States citizens are traveling to Canada to purchase prescription drugs that were manufactured in the United States and imported to Canada. This conduct violates 21 U.S.C. Section 381(d)(1). The inquiring lawyer and other lawyers he advises are considering joining those citizens. They are concerned that this conduct might put them in violation of the Rules of Professional Conduct. Currently, customs officials are taking a tolerant approach to such conduct, but the inquiring lawyer is concerned that these officials might change that policy.

Question
1. Is it a violation of the Rules of Professional Conduct for a lawyer to purchase prescription drugs that are manufactured in the United States and imported to Canada?

2. Can a lawyer be subjected to disciplinary proceedings for a violation of the law which does not constitute a violation of the Rules of Professional Conduct?

Analysis
No lawyer, including those on the Committee, may counsel anyone to commit a criminal act. RPC 1.2(d).

RPC 8.4(b) provides that “(i)t is professional misconduct for a lawyer to. . . (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Violation of 21 U.S.C. Section 381(d)(1) is a criminal act. However, not all criminal acts violate of RPC 8.4(b); only those that reflect adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer.

In Discipline of Huddleston, 137 Wn.2d 560, 974 P.2d 325 (1999), the Washington Supreme Court made it clear that “conduct reflecting adversely on the lawyer’s fitness” need not necessarily be conduct undertaken while engaged in practicing law. In assessing what conduct would qualify under the rule, the Court, in another case, has found that “conduct reflecting adversely on a lawyer’s fitness to practice law can only be found when there is some nexus between the lawyer’s conduct and those characteristics relevant to law practice.” In Discipline of Curran, 115 Wn.2d 747, 768, 801 P.2d 962 (1990). RPC 8.4(i) also makes it an ethical violation to commit any act that shows disregard for the law.

While finding that Curran had not violated RPC 8.4(b), the Supreme Court did discipline him for his vehicular homicide which it found to reflect a “disregard for the rule of law.” In Discipline of Curran, 115 Wn.2d at 763.

In addition, any actual conviction for any “serious crime” brings an automatic suspension of a lawyer from the practice of law. RLD 3.1. Any felony is a “serious crime.” RLD 3.1(i) Re-importing drugs from Canada with intent to defraud or mislead or after a prior conviction for violating the Federal Food, Drug, and Cosmetic Act would be a felony, as would re-importation with knowledge that it is a crime to do so. Thus, while re-importing drugs may or may not be an ethical violation, it could lead to a suspension from the practice of law and to an automatic disciplinary proceeding and may be independent grounds for a disciplinary sanction.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.