Counseling Cannabis Clients Complies with Ethical Requirements

• Author: Kelso L. Anderson
• Pages: 8-8

Published in Litigation News Volume 46, Number 1, Fall 2020. © 2 020 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

state bar ethics op inion reaf-

f‌irms that lawyer s may

ethically assis t clients in

conduct desi gned to

comply with a state’s

medical mar ijuana laws, even though

the client’s con duct violates federal

law. Although New York State Bar

Association (N YSBA) Opinion 1177

appears to run afo ul of the letter of

Model Rule of Prof essional Conduct

1.2(d), ABA Secti on of Litigation lead-

ers conclude th at the opinion is consis-

tent with other jurisd ictions that have

dealt with the issu e.

In Opinion 117 7, the NYSBA con-

cluded that its 2 014 ruling in Opinion

1024 remained e ective despite the

U.S. Attorn ey General’s rescission

in 2018 of the “Col e Memo,” which

restricted fede ral enforcement of

the federal ma rijuana prohibition

when persons a nd entities acted in

accordance with st ate regulation of

medical mar ijuana. Opinion 1024 con-

cluded that, “i n light of current fed-

eral enforceme nt policy, the New York

Rules of Professio nal Conduct permit

a lawyer to assist a clie nt in conduct

designed to comp ly with state medi-

cal marijuana law, notwithstanding

that federal na rcotics law prohibits the

delivery, sale, p ossession and use of

marijuana and makes no exception for

medical marijuana” (emphasis add ed).

In 2014, New York adopted t he

Compassion ate Care Act (CCA), a

law that permitted a nd regulated the

cultivation, distri bution, prescription,

and use of mariju ana for medical pur-

poses. Also in 2 014, Congress, as part

of a spending me asure, enacted the

Rohrabacher-Blumenauer amend-

ment, which proh ibits the U.S. Justice

Departme nt from using any of the

funds appropriated by Congress to

prevent states with med ical marijuana

laws from implem enting their own

“state laws that autho rize the use, dis-

tribution, pos session, or cultivation of

medical marijuana.”

Counseling Cannabis Clients

Complies with Ethical Requirements

Based heavily on th e Rohrabacher-

Blumenauer amendment, a federal

appellate cour t in United States

v. McIntosh forbade the Justice

Departme nt from prosecuting defen-

dants who compl ied with their respec-

tive states’ medic al marijuana laws.

Moreover, Opinion 117 7 notes that,

since 2014, Con gress has renewed the

Rohrabacher-Blumenauer amendment

with bipartisa n support in subsequent

spending me asures. Accordingly,

Opinion 1177 co ncludes that, despite

the Attorney Gene ral’s rescission of

the “Cole Memo ,” federal law enforce-

ment policy rem ains the same as it

concerns state law im plementation of

medical mar ijuana laws.

Rule 1.2(d) express ly provides that

“[a] lawyer shall not counsel a cli ent to

engage, or as sist a client, in conduct

that the lawyer knows i s criminal or

fraudulent . . . .” N otwithstanding the

letter of Rule 1. 2(d), Section of Litigation

leaders obse rve that states that per-

mit medical ma rijuana use have been

f‌lexible in allowing l awyers to counsel

cannabis cli ents. “I believe some states

have amended Rule 1.2 specif‌ically

to allow lawyers to provide a dvice on

matters of state law wh ere federal law

is inconsistent wit h state law,” opines

John M. Bar kett, Miami, FL, cochair of

the Section’s Ethic s & Professionalism

Committee. “As lon g as the Justice

Departme nt does not or cannot enforce

federal law in this f‌i eld and the lawyer

is acting within th e framework of state

law, I would say there shoul d not be a

legal risk,” B arkett adds.

Echoing Barkett’s observation,

Michael H. R ubin, Baton Rouge,

LA, a mem ber of the ABA Standing

Committee on Ethi cs and Professional

Responsibilit y and author of a recent

law review article on th e topic, shares

that “of the 33 states tha t have legal-

ized recreational o r medical marijuana

or both, 17 have either a ltered the text

of their state’s versio n of ABA Model

Rule 1.2—wh ich under the ABA Model

By Kelso L. Anderso n, Litigation News Associate Editor

Rule prohibits a n attorney from assist-

ing a client in a civil m atter to violate

the 'law' (which inclu des state and

federal law)—or altered the comments

to their state’s version of R ule 1.2, or

issued an ethic s opinion dealing with

the issue.”

Lawyers who are u nsure about

whether they may advi se clients on

cannabis-re lated business issues may

want to proceed cau tiously. “Marijuana

remains a Sche dule 1 drug under the

Controlled Sub stances Act,” Rubin

warns. “Un less the state in which the

lawyer is practic ing has changed its

version of Rule 1. 2 to expressly permit

an attorney to assist a c lient in comply-

ing with state law—even tho ugh state

law may conf‌lict with fe deral law—or

unless the state h as issued a specif‌ic

ethics opinio n on the subject, attor-

neys who assist clie nts in civil matters

involving state-legalized marijuana run

the risk of being ch arged with violat-

ing both Rule 1. 2 and Rule 8.4,” he cau -

tions.

“Attorneys should check whether

their malprac tice insurance policy pro-

vides them with coverag e for dealing

with state-lega lized marijuana issues,”

Rubin advises . “Lawyers should con-

sider getting a n opinion of counsel to

approve of their advis ing a client under

state law or talk to their m alpractice

carrier abo ut their work to verify that

they will be covered in any civi l claims

that may arise from th e representa-

tion. Lawyers s hould also monitor any

changes in fed eral enforcement pol-

icy,” concludes Ba rkett.

RESOURCE

Michael H . Rubin, “Smokin’ H ot: Ethical

Issues for Lawyers Advising Business

Clients in Sta tes with Legalized Medica l

or Recreational Marijuana,” La. L. Rev.

(Spring 2019).

8 | S ECTION OF LITIGATION

ETHICS STRU GGLES IN THE LEGAL WORL D