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Advising Clients Regarding Criminal Conduct -- Medical or Recreational Marijuana Industry

Rhode Island Ethics Advisory Panel Op. 2017-01

Risk Management Issue:  In a state that has legalized marijuana in contravention of the federal Controlled Substances Act, what are a lawyer's obligations when advising a client in the marijuana industry?

The Opinion:  The federal prohibition of marijuana under the Controlled Substances Act creates thorny ethical issues for attorneys representing clients in the cannabis industry in the twenty-nine states that have legalized medical marijuana and the eight states that have legalized recreational marijuana.  The Rhode Island Ethics Advisory Panel recently joined a chorus of other states in concluding that attorneys may ethically advise clients on all matters related to a particular state's medical marijuana law, as long as attorneys also advise clients regarding the federal law.

Rule 1.2(d) of the Rhode Island Rules of Professional Conduct prohibits lawyers from counseling or assisting clients in conduct that the lawyer knows is criminal.  This rule creates an inherent conflict for attorneys representing clients involved in Rhode Island's medical marijuana industry because marijuana remains classified as a Schedule I narcotic under the Controlled Substances Act.  In order to clarify attorneys' duties and responsibilities under Rule 1.2(d), two attorneys sought guidance from the Ethics Advisory Panel concerning the propriety of advising individuals and businesses which seek to cultivate, dispense or supply medical marijuana.   

The Panel responded to this inquiry stating that when an attorney assists a client in a lawful medical marijuana program, the lawyers are not assisting clients in conduct that is criminal, but rather providing assistance in implementing and promoting state law that is sufficiently complex to require legal guidance.  The Panel reasoned that when the Supreme Court implemented Rule 1.2(d), it did not intend to bar attorneys from advising clients in activity permissible under state law. 

In further support of its decision, the Advisory Panel discussed the growing consensus among courts and ethics committees that attorneys representing clients in the marijuana industry are not in violation of the applicable rules of professional conduct.  For example, some states -- New Jersey, Ohio, Pennsylvania, Alaska, Connecticut, Hawaii, Illinois and Oregon -- have amended Rule 1.2(d) to expressly allow attorneys to assist clients in navigating state laws regarding marijuana as long as the attorney provides guidance related to federal law and policy. 

In other states -- Arizona, Minnesota, New York, Florida and Massachusetts -- ethics committees have issued decisions confirming that attorneys may ethically advise clients in the marijuana industry.  Based in part on this growing consensus among the states where some form of marijuana use has been legalized, and in consideration of the Supreme Court's intention when implementing 1.2(d), the Panel concluded that Rode Island attorneys representing clients in the medical marijuana industry are not in violation of Rule 1.2(d), as long attorneys provide guidance on the federal law as well.  

Risk Management Solution: Rhode Island attorneys seeking to comply with this opinion should inform clients about marijuana's status under the Controlled Substances Act, as well as the Cole Memorandum and the Rohrabacher-Farr Amendment, among other applicable federal rules and regulations.  Attorneys outside of Rhode Island should determine whether their state has issued an ethics advisory opinion regarding the representation of clients in the marijuana industry prior to engaging in such representation to ensure compliance with applicable rules of professional conduct.