As readers of my blog are aware, there is a conflict between state laws legalizing medical or recreational/adult marijuana use and federal law which continues to classify marijuana as an illegal drug. Despite federal law, the marijuana business is booming and states are rapidly changing their laws to allow some form legal marijuana (medical or recreational). Pennsylvania just enacted its own Medical Marijuana Act opening the door for entrepreneurs who want to be part of the medical marijuana business. As a Pennsylvania lawyer, it is my job to advise potential clients on federal, state and local laws and assist my client to navigate within those laws. However, there is a potential ethical problem with a client who wishes to start a medical marijuana business due to the tension between state law and ostensibly controlling federal law. Essentially, I would be advising and/or assisting a client to commit a crime and violate federal law (which theoretically could expose an attorney to federal liability).
Rule 1.2(d) of the Pennsylvania Rules of Professional Conduct states “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.” (Emphasis added).
Comment 9 to Rule 1.2 states that Paragraph (d) “prohibits a lawyer from knowingly counseling or assisting a client to commit a crime or fraud. This prohibition, however, does not preclude the lawyer from giving an honest opinion about the actual consequences that appear likely to result from a client’s conduct. Nor does the fact that a client uses advice in a course of action that is criminal or fraudulent of itself make a lawyer a party to the course of action. 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.” (Emphasis added).
Comment 10 to Rule 1.2 essentially states that when the client’s course of action has already begun and is continuing, the lawyer’s responsibility is especially delicate. The lawyer is required to avoid assisting the client ……, must, therefore, withdraw from the representation of the client in the matter.
Rule 8.4 states, inter alia, that it is professional misconduct for a lawyer to violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another.
If an attorney provides legal advise and/or assists a client in the formation or operation of a medical marijuana business, the attorney could be found to have violated the Rules of Professional Conduct by advising and or assisting that client to commit a criminal act under federal law.
Other states with medical marijuana laws have addressed this conflict with differing conclusions. Both Ohio and New Mexico’s respective ethics committees have issued decisions saying that lawyers within those states who represent marijuana businesses or marijuana touching businesses would be helping clients violate federal law and. therefore, the lawyer would be violating the state’s code of conduct.
Other states such as Arizona, Colorado, Illinois, New York and Washington State have explicitly advised attorneys within those states that it is not a violation of the attorney code of conduct to assist clients with marijuana related businesses. While other states have passed statutes or enacted policies to protect attorneys advising and/or assisting clients with marijuana related businesses. Ohio is now looking to amend their rules of professional conduct to address this conflict.
“Laws and institutions are constantly tending to gravitate. Like clocks, they must be occasionally cleansed, and wound up, and set to true time.” – HENRY WARD BEECHER
While waiting for state and federal laws to be set to true time, Pennsylvania lawyers will continue to represent their clients and provide advice on and assistance with Pennsylvania’s Medical Marijuana Act. Any potential violations of the Rules of Professional Conduct can be dealt with a latter time should it become an issue.