March 31, 2020 Top Story

Counseling Cannabis Clients Complies with Ethical Requirements

Ethics opinion reinforces obligation to advise medical marijuana clients

By Kelso L. Anderson

A state bar ethics opinion reaffirms that lawyers may ethically assist clients in conduct designed to comply with a state’s medical marijuana laws, even though the client’s conduct violates federal law. Although New York State Bar Association (NYSBA) Opinion No. 1177 appears to run afoul of the letter of Model Rule of Professional Conduct (MRPC) 1.2(d), ABA Section of Litigation leaders conclude that the opinion is consistent with other jurisdictions that have dealt with the issue.

Marijuana remains illegal at the federal level

Marijuana remains illegal at the federal level

iStockphoto by Getty Images

Federalism at Play

In Opinion No. 1177, the NYSBA concluded that its 2014 ruling in Opinion No. 1024 remained effective despite the U.S. Attorney General’s rescission in 2018 of the “Cole Memo,” which restricted federal enforcement of the federal marijuana prohibition when persons and entities acted in accordance with state regulation of medical marijuana. Opinion No. 1024 concluded that, “in light of current federal enforcement policy, the New York Rules of Professional Conduct permit a lawyer to assist a client in conduct designed to comply with state medical marijuana law, notwithstanding that federal narcotics law prohibits the delivery, sale, possession and use of marijuana and makes no exception for medical marijuana (emphasis added).

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