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November 21, 2016 Top Story

Ethics Board Advises Attorneys to Avoid Medical Marijuana Clients

Decision widens jurisdictional split and highlights conflict over marijuana law

Stephen Carr

Attorneys aiding clients in the medical marijuana industry risk violating Professional Rule of Conduct 1.2(d). Ohio was the twenty-fifth state to legalize medical marijuana, and the Ohio Supreme Court created a narrow exception to Rule 1.2(d) to allow attorneys to ethically represent clients seeking to comply with the state's new medical marijuana law. The decision deepens the split between jurisdictions over how Rule 1.2(d) applies to the medical marijuana industry and highlights the uncertain legal landscape for attorneys in states without specific exceptions uncertainty.

Budding Conflict over Marijuana Law

Several states considered legalizing medical and recreational marijuana in this past November's election. Arkansas, Florida, Montana, and North Dakota approved the use of medical marijuana, and California, Maine, Massachusetts, and Nevada voted to approve the recreational use of marijuana. The results legalizing certain marijuana uses now increases the chance that clients will seek attorneys' advice on how to establish medical marijuana businesses.

Yet the possession, sale, and distribution of marijuana remains illegal under federal law. Controlled Substances Act, 21 U.S.C. 812(b)(1) (2016). As a result, attorneys assisting clients in establishing medical marijuana businesses could find themselves facing criminal conspiracy charges.

"If lawyers are prohibited from assisting clients on these issues, individuals, and businesses will be trying to navigate these regulations without legal advice, creating a risk of noncompliance and inviting the potential for abuse," according to Basheer Y. Ghorayeb, Dallas, TX, cochair of the ABA Section of Litigation's Ethics & Professionalism Committee, noting the dilemma facing state governments and attorneys.

Weeding Out the Confusion Surrounding Rule 1.2(d)

Rule 1.2(d) prohibits an attorney from assisting a client in engaging in illegal behavior. It does allow attorneys to explain to clients the legal consequences of their proposed actions. It also allows attorneys to offer an opinion on whether a client's actions are legal. But, Comment 9 to the model rule makes clear the rule has important limits. There is a "critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity."

The Ohio Board of Professional Conduct determined advising clients on the federal law consequences of establishing a medical marijuana business is ethical. Providing other services in aid of such a business, however, violates the rule. Soon after the ethics board released its opinion, the Ohio Supreme Court moved to amend Rule 1.2(d). The amended rule allows attorneys to assist clients seeking to comply with the new medical marijuana law. The amendment also requires attorneys to advise clients of the federal consequences of their actions.

States Jointly Hampered in Efforts to Regulate Marijuana

States are reacting differently to the ethical obligations at play. Some jurisdictions, such as Washington and Arizona, argue that assisting clients in establishing medical marijuana businesses may not violate Rule 1.2(d). Other states, such as Colorado, are considering amendments similar to the Ohio amendment. Pennsylvania is considering adopting a general rule allowing attorneys to offer advice about any activity legal under state law. All jurisdictions agree, however, attorneys must advise their clients about relevant federal law.

Jurisdictions approving of lawyers assisting clients in the medical marijuana industry rely, in part, on a recent memo from the U.S. Department of Justice to prosecutors. The memo explained the enforcement of marijuana laws has traditionally been a matter of state and local law. It instructed federal prosecutors not to prioritize marijuana prosecutions in states with a strong regulatory system in place.

Federal enforcement priorities can change, however, leaving attorneys subject to criminal prosecution. "The lawyers in these states are grappling with the reality that, in our federal system of government, what determines whether certain conduct is criminal depends on both state and federal criminal laws. Lawyers, like the citizens of those states, cannot pick and choose among the criminal laws they must follow. They cannot decide to favor their state laws and ignore the federal criminal law on the same topic," Ghorayeb explains.

The challenge for states governments moving forward is how to regulate the medical marijuana industry when attorneys are unable to participate ethically or legally in the process. Thomas Wilkinson Jr., Philadelphia, PA, Center for Professional Responsibility/Standards of Conduct Professional Responsibility liaison for the Section's Ethics & Professionalism Committee, points out the irony of restricting access to attorneys at a time when legal advice is needed more than ever. "Like any other area, a lawyer's advice is most needed and clients are at the greatest risk of running afoul of the law when there is tension in the law," he concludes.

Stephen Carr is a contributing editor for Litigation News.

Keywords: medical marijuana, Rule 1.2, attorney advising, federalism

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