The New York State Bar Association recently reaffirmed that attorneys can help clients comply with the state’s medical marijuana law without running afoul of professional ethics Rule 1.2(d), prohibiting counseling a client to break the law.
Federal law prohibits the sale, possession, or use of marijuana but enforcement exceptions have been made for medical marijuana, including the now-rescinded Cole Memo and the Rohrabacher-Farr amendment.
So the question in this “unusual legal situation” is: Can an attorney counsel a client to undertake an act that’s legal in that state but illegal under federal law that’s deliberately unenforced? the opinion said.
In 2014, the New York State Bar Association advised that it was legal for attorneys to counsel clients on medical marijuana law-related issues based on the then-current federal enforcement policy.
The 2013 Justice Department Cole Memo directed U.S. attorneys to not enforce federal marijuana laws against those in compliance with state medical marijuana laws. However, then-Attorney General Jeff Sessions rescinded the memo in 2018.
In December 2014, Congress enacted the Rohrabacher-Farr amendment, which prohibits the DOJ from using any of the funds appropriated by Congress to prevent states with medical marijuana laws from implementing them, the opinion said.
The amendment reinforces the NYSBA’s 2014 conclusion, it said.
“Nothing in the history and tradition of the profession, in court opinions, or elsewhere, suggests that Rule 1.2(d) was intended to prevent lawyers in a situation like this from providing assistance that is necessary to implement state law and to effectuate current federal policy,” the opinion advised.
The opinion is N.Y.S. Bar Ass’n Comm. on Prof’l Ethics, Op. 1177, 11/18/19.