Counseling Cannabis Clients Complies with Ethical Requirements

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.

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).

In 2014, New York followed 22 other states and adopted the Compassionate Care Act (CCA), a law that permitted and regulated the cultivation, distribution, prescription, and use of marijuana for medical purposes. The CCA allows hospitals and community health centers to dispense medical marijuana to patients who have been certified by a health care provider and who are registered with the state Department of Health; it also permits for the regulation and registration of organizations to manufacture and deliver marijuana for authorized medical uses. Also in 2014, Congress, as part of a spending measure, enacted the Rohrabacher-Blumenauer amendment, which prohibits the U.S. Justice Department from using any of the funds appropriated by Congress to prevent states with medical marijuana laws from implementing their own “state laws that authorize, the use, distribution, possession, or cultivation of medical marijuana.”

Based heavily on the Rohrabacher-Blumenauer amendment, a federal appellate court in United States v. McIntosh forbade the Justice Department from prosecuting defendants who complied with their respective states’ medical marijuana laws. Moreover, Opinion 1177 notes that, since 2014, Congress has renewed the Rohrabacher-Blumenauer amendment with bipartisan support in subsequent spending measures. Accordingly, Opinion No. 1177 concludes that, despite the Attorney General’s rescission of the “Cole Memo,” federal law enforcement policy remains the same as it concerns state law implementation of medical marijuana laws.

Conflict with Model Rules

Despite the foregoing conclusion of Opinion No. 1177, MRPC 1.2(d) expressly provides that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent . . . .” Notwithstanding the letter of MRPC 1.2(d), Section of Litigation leaders observe that states that permit medical marijuana use have been flexible in allowing lawyers to counsel cannabis clients. “I believe some states have amended MRPC 1.2 specifically to allow lawyers to provide advice on matters of state law where federal law is inconsistent with state law,” opines John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee. “As long as the Justice Department does not or cannot enforce federal law in this field and the lawyer is acting within the framework of state law, I would say there should not be a legal risk,” Barkett concludes.

Echoing Barkett’s observation, Michael H. Rubin, Baton Rouge, LA, a member of the ABA Standing Committee on Ethics and Professional Responsibility and author of a recent law review article on the topic, shares that “of the 33 states that have legalized recreational or medical marijuana or both, 17 have either altered the text of their state’s version of ABA Model Rule 1.2—which under the ABA Model Rule prohibits an attorney from assisting a client in a civil matter to violate the “law” (which includes state and federal law)—or altered the comments to their state’s version of Rule 1.2, or issued an ethics opinion dealing with the issue.”

Advice for Lawyers

Lawyers who are unsure about whether they may advise clients on cannabis-related business issues may want to proceed cautiously. “Marijuana remains a Schedule 1 drug under the Controlled Substances Act,” Rubin warns. “Unless the state in which the lawyer is practicing has changed its version of Rule 1.2 to expressly permit an attorney to assist a client in complying with state law—even though state law may conflict with federal law—or unless the state has issued a specific ethics opinion on the subject, attorneys who assist clients in civil matters involving state-legalized marijuana run the risk of being charged with violating both Rule 1.2 and MRPC 8.4,” he adds.

“Attorneys should check whether their malpractice insurance policy provides them with coverage for dealing with state-legalized marijuana issues,” Rubin advises. “Lawyers should consider getting an opinion of counsel to approve of their advising a client under state law or talk to their malpractice carrier about their work to verify that they will be covered in any civil claims that may arise from the representation. Lawyers should also monitor any changes in federal enforcement policy,” advises Barkett.