A few weeks ago, we wrote about the Ohio bar applicant with mega-school debt, and the recommendation of the state character and fitness board that she not be permitted to take the bar exam until 2024 based in part on her “neglect of financial responsibilities.”

Less than six weeks after hearing oral argument, a divided Ohio Supreme Court overturned the board’s recommendation, and ruled that the applicant will be permitted to take this year’s July bar exam.  The ABA Journal’s story is here, and you can read the court’s opinion here.

On-time payments

The court acknowledged the 59-year-old applicant’s testimony that the debt might not be paid off during her lifetime, but said that her credit report showed that she was servicing her current debts (with the exception of one disputed debt) and that she was not in arrears.  The board had also conceded that the applicant appeared to be timely on her debt obligations — although for the large educational debt, there was no repayment obligation at the time of the hearing, because of the applicant’s percentage-of-income plan.

All things considered, the majority said, the applicant had established by clear and convincing evidence that she has the requisite character, fitness and moral qualifications to practice and that she can sit for the upcoming exam.

Taxpayers’ burden?

Four of the court’s seven justices concurred; two justices concurred in the judgment only.  The lone dissenter said that the applicant’s pattern of taking on debt without a plan for how it will be repaid does not justify the trust of clients, adversaries or the courts with respect to her professional duties, and indicates that the applicant is “relying on someone else (most likely, in this case, the taxpayers) to take care of her debts for her.”

Large educational debt is more and more a part of post-law-school life.  The court’s willingness to see past the amount — at least when the debt is not in arears — is noteworthy, as is the relative speediness of its decision here.

A prominent Chinese dissident may proceed with his malpractice case against a law firm based on allegations that the firm failed adequately to protect his personal data from hackers, a Washington, D.C. district court said in an opinion on February 20.  In his $50 million suit, the plaintiff, Guo Wengui, alleges that after he retained the firm, someone (assumed to be associated with the Chinese government) penetrated the firm’s computer servers, gained access to his confidential information and published it on the Internet.

The district court turned back the firm’s motion to dismiss and allowed most of Wengui’s claims to go forward.  The case bears watching as cyberattacks increasingly target law firms, and legal IT teams struggle to stay one step ahead of security threats.

“Expect to be” a target

Wengui alleged in his complaint that he is a well-known dissident who exposed corruption and human rights abuses of the Chinese ruling party while he lived there.  After he fled China in 2015, Wengui came to New York.  Nonetheless, he alleged, the Chinese government has continued to harass him with demonstrations outside his home and a “negative propaganda campaign.”  He applied for political asylum and retained the law firm for potential assistance..

According to the complaint, the firm assured Wengui that it could protect his interests.  Wengui alleges that he warned the firm of the risks attendant to his status as a prominent dissident, including that the firm “should expect to be subjected to sophisticated cyber attacks,” and that it should “take special precautions” to prevent intrusion into and disclosure of his sensitive confidential information.

Nonetheless, Wengui alleged, in September 2017, the firm’s computer system was penetrated, and the hackers obtained Wengui’ s and his spouse’s sensitive personal information, including his asylum application.  The information was published and disseminated on social media, the complaint says.

Was cyber-breach a breach of duty?

The court held that Wengui pleaded viable claims for malpractice, breach of fiduciary duty and breach of contract.  Wengui’s claim that the firm’s information security measures were inadequate and unreasonable rested on more than the mere fact that “there was a cyber incident,” the court said.  And while it did not find that all failures to protect against a foreseeable cyberattack would be actionable standing on their own, the court said that here, there were additional factors:  Wengui “sufficiently” pleaded that the firm had misrepresented the manner in which it would protect his information in order to obtain his legal business.

Wengui also alleged that, despite the firm’s promise to take special precautions, it violated his express instructions by placing his confidential information on its servers and conveying it by e-mail, and that he was actually harmed when the Chinese government used the allegedly-hacked information as part of its “persecution and harassment” against Wengui.

These factors also pointed to the breach of the duty of reasonable care sufficient to sustain a malpractice claim at the pleading stage, and to support a breach-of-contract claim (although the latter “just barely,” said the court).

Corporate duty to protect?

In at least two cases, courts have gone so far as to hold that corporations have a duty to protect against a third person’s criminal act if the organization has a reason to anticipate the crime, and breaches its duty to customers if it fails to prevent a foreseeable cyberattack.  See Attias v. CatreFirst, Inc., 365 F. Supp. 3d 1, 21 (D.D.C. 2019); In re Arby’s Rest. Grp. Inc. Litig., 2018 U.S. Dist. LEXIS 131140 (N.D. Ga. Mar. 5, 2018).  In 2016, two plaintiffs filed a bellwether class action in the Northern District of Illinois against a law firm in advance of any cyber-breach, a development we discussed and one that worried commentators.  The putative plaintiffs later withdrew the complaint, and the law firm targeted in the suit later sued the putative plaintiffs’ lawyers.

We’ve written before about the reported susceptibility of law firms to data security breaches.  And late last year, the influential Sedona Conference proposed a new “data breach” privilege to protect information prepared in a cybersecurity context, even when not involving communication with an organization’s lawyer.

Negligence claims against law firms for information security breaches are sure to proliferate in the future as cybercriminals become ever more skillful and experienced in their attacks.  All lawyers should take note.

An Ohio law school grad might not be allowed to sit for this year’s bar exam partly because she and her husband have a combined educational debt of almost $900,000 that they are unlikely ever to pay off.

The state’s Board on Character and Fitness recommended that the applicant not be allowed to take the exam until 2024, and had harsh words for her situation, including that she had “learned to ‘work the system’ effectively.”   The Ohio Supreme Court heard oral arguments last month, and will decide whether to accept the Board’s findings and recommendation.  (You can watch the argument video here, in which the applicant argues her case pro se.)  The proceedings spotlight the issue of educational loans, which for some law school students can total hundreds of thousands of dollars.

Indebted for life

According to the Board opinion, the applicant is 59 years old and graduated from Capital University Law School in 2019.  Although the local county bar admissions committee concluded that the applicant met the character and fitness requirements necessary to take the Ohio bar exam, the Board invoked its sua sponte authority to carry out its own investigation.

The Board said in its opinion that the applicant’s share of the couple’s student loan debt was about $340,000, and the applicant testified that they are on a “percentage of income” payment plan, under which they will pay a percentage of their income — likely for the rest of their lives.  Currently, the payments on this educational debt are zero, based on the couple’s low income, the opinion said.

In addition to the educational debt, the Board opinion cited other debts that had been outstanding for many years, and some that had effectively “gone away” because of age.  Nonetheless, the Board acknowledged that the applicant was current on her present financial obligations.

Meritless litigation?

The Board was concerned not only with the applicant’s long-standing unpaid debt, but her involvement in about 60 civil actions that she brought on her own behalf in municipal, state and  federal courts relating to many different kinds of issues — personal injury, medical malpractice, car sales, rent due on her Section 8 housing, property law issues and bankruptcy.

The applicant admitted to the Board that she “did not know what she was doing” when she filed some of these suits; the Board characterized many as “ill-advised and … meritless.”  The Board concluded that the applicant appeared to be “a person who would rather file a lawsuit … than resolve an issue by negotiation or other means.”

Clear and convincing evidence of fitness

Ohio bar applicants have the burden of proving by clear and convincing evidence that they have the requisite character, fitness and moral qualifications to be admitted.  Ohio Gov. Bar R. I, § 11(D)(1).  (Other jurisdictions have the same standard of proof.)  And in Ohio, as in other jurisdictions, the “neglect of financial responsibilities” is a factor that must be considered in determining whether applicants have established their character and fitness.  Gov. Bar R. I § 13(D)(3).

Regulators take a dim view of significant debt when it is coupled with vague or unfeasible plans for repayment.  For instance, in a 2011 opinion, the Ohio Supreme Court turned down an applicant based on student debt of $170,000, coupled with additional credit-card debt, part-time employment, and lack of a feasible plan to satisfy the applicant’s financial obligations.

The underlying principle appears to be that, as the state supreme court said in a 2009 decision, “an applicant’s neglect of his or her own financial responsibilities bodes ill for the applicant’s ability to oversee the interests of clients with the diligence and integrity required of the profession.”

That might be a debatable point, but the fact remains that debt — a fact of life for a large proportion of bar applicants — can be a roadblock to getting a law license if the applicant doesn’t have a convincing strategy for dealing with it.

Most lawyers have a general understanding of the “no-contact rule”  — namely that under state versions of Model Rule 4.2, with a few exceptions, you can’t communicate directly on the subject of the representation with someone you know is represented by counsel.  But where does in-house counsel fit in?  Is in-house counsel “fair game” for ex parte contact by opposing counsel?

Last month, the Virginia Supreme Court approved Legal Ethics Opinion 1890, and answered “Yes,” in an opinion that also covered some other issues of concern to in-house counsel.

No need for protection

Even in the current legal services market, where there is a trend for corporate clients to in-source legal work, many continue to rely on outside help for litigation and other matters, setting up a seeming choice for an opponent’s counsel — reach out to a company’s inside lawyer, or contact outside counsel.

The new Virginia opinion lines up with several other authorities in confirming that contacting in-house counsel can be an ethically-permitted option, even under the “no contact” rule.

This question might come up in a couple other ways, too:  when in-house counsel wants to contact an opponent’s outside counsel, who must decide whether she can participate in the communication; or when in-house counsel for one party wants to communicate with in-house counsel for another party, when both are represented by outside counsel.

In confirming that a lawyer “is generally permitted to communicate with a corporate adversary’s in-house counsel about a case in which the corporation has hired outside counsel,” the Virginia State Bar Association’s Standing Committee  on Legal Ethics referred to the purpose of Rule 4.2.  The no-contact rule is “to protect uncounseled persons against being taken advantage of by opposing counsel” and to safeguard the client-lawyer relationship from interference, the Committee said.

Contact between the in-house lawyer and opposing counsel does not present either of these dangers, said the Committee.  It is not likely that in-house counsel would be manipulated into making harmful disclosures, or do so inadvertently.  Therefore, the Committee concluded, the in-house lawyer does not need the protection of the no-contact rule.

Mainstream view, and some nuances

Other jurisdictions have arrived at conclusions similar to the Virginia Ethics Committee’s.  See, e.g., Op. 331 (D. C. Bar Ass’n Oct. 2005) (generally, no prior consent needed from company’s outside counsel in order for a lawyer to communicate with in-house counsel on the subject of the representation);  In re Grievance Proceeding, 2002 U.S. Dist. LEXIS 18417, 2002 WL 31106389 (D. Conn. July 19, 2002) (general counsel of a corporation did not constitute a “party” for purposes of Connecticut Rule 4.2, and protecting attorney-client relationship did not require bar against ex parte contact);  Op. 2007-1 (N.Y. City Bar Ass’n Jan. 1, 2007) (discussing various scenarios and concluding under former disciplinary rule that lawyer with objective good faith belief that in-house counsel is acting as entity’s lawyer may communicate with in-house counsel of a party known to be represented by outside counsel).

Likewise, the ABA’s Formal Op. 06-443 (Aug. 5, 2006), says that Model Rule 4.2 “generally does not prohibit” outside counsel from communicating ex parte with an opposing party’s inside counsel about the subject of the representation.  See also Restatement (Third) of the Law Governing Lawyers § 100 cmt. [c].

There are some nuances, however, which Rule 4.2 and/or the ABA opinion point to.

  • an adverse attorney should not communicate without consent with inside counsel who is part of the company’s “constituent” group for the matter –who participated, for instance, in giving business advice or in making decisions that gave rise to the dispute;
  • contacting an organization’s in-house counsel after being asked not to might violate the no-contact rule; and
  • Rule 4.2 and its comments describe permissive exceptions including contacts that are authorized by law (such as the constitutional right to petition the government) or a court order, or that don’t relate to the subject of the dispute.

Have you recently made a career move — maybe going in-house?  Or shifting from a firm to government work?  When you’re dealing with a work-life change, watch out for details that can too-easily fall through the cracks — like your license to practice, the date it expires, and whether you are in line to get an expiration notice.

Illustrating the possible pitfalls:  a high-level Justice Department  lawyer was in the spotlight this week because he practiced for two months while unaware that his license had lapsed.  He issued apology letters, including to the Ninth Circuit, where he had presented an oral argument while unlicensed.

“I wish to correct…”

As reported in Law360, the lawyer heads the DOJ’s Environment and Natural Resources Division.  He has been a member of the D.C. bar since 1997, and worked at Kirkland & Ellis before joining the DOJ in 2018.  His license was deactivated October 1 for not paying his annual bar dues.

In apology letters he sent to three federal courts where he practiced while his license was inactive, the lawyer said that the D.C. bar did not have his correct address and that he didn’t get mail forwarded from his former firm; as a result, he didn’t receive notice about the dues deadline.  Once he discovered his license had lapsed, he paid up the next day, he said.

During his twelve years at Kirkland, the lawyer said in the letters, the firm handled payment of his bar dues.

“If in appearing at oral argument,” the lawyer wrote to the Ninth Circuit, “I implicitly represented that my D.C. bar license was active and was authorized to represent the United States at that time … I wish to correct any such implicit representation and extend my sincere apology.”

Don’t let this happen to you!

Model Rule 5.5 bars practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction.  Every jurisdiction prohibits unlicensed practice.  We’ve pointed out before the woes that can befall in-house counsel, for example, who fail to keep up their corporate license registration.  Here, the problem appears to have been a career move from private practice to government work with the accompanying change of address.  In his apology letters, the lawyer pointed out that his old firm had also moved to a new address after he left.  That surely made the snafu worse.

I’ve practiced with a large firm for my whole career, and the DOJ lawyer’s situation also illustrates how relatively easy we big-firm lawyers have it when it comes to the nitty-gritty details of practice.  It’s easy to become dependent on great support services — like staff that takes care of annual registration dues, or administering the IOLTA account or running the conflict-checking data base.

Just be aware that when making a change from one practice environment to another, you may have to pick up some tasks — and a change-of-address form may be one of them.

As 2020 kicks off, let’s take a look back at situations that got lawyers into ethical hot water last year.  They each point to some ways you can stay out of trouble this year.

1.  Talk nicely

As widely reported, calling your opposing counsel a “bowl of d- – ks,” among other epithets is a sure-fire way to serve up some  ethics woes.  Other examples of lawyers misusing their power of speech in various ways, included:

As the Model Rules say, being members of the legal profession means that we are representatives of clients, officers of the legal system, and public citizens with special responsibility for the quality of justice.  Calling a fellow member of the bar a “f- -ktard” just doesn’t square with those roles.

2.  Bill carefully

Billing was big news at the end of last year, with reports about the lawyer who failed to keep contemporaneous time records and was suspended for overcharging clients based on her reconstructions of the work.  In addition, there was the federal suit filed  early in the year, with the allegation that a firm’s “block billing” obscured overcharges.  (The plaintiff voluntarily dismissed the case two weeks after filing it.)  There are lots of ethics issues relating to legal fees in general — dividing them with other lawyers; whether you must deposit them in an IOLTA or IOTA; what to do in case of a fee dispute with a client — but everything depends on the core notions of charging a reasonable fee, communicating the basis of that fee to the client, and keeping the client informed about the bill as you go.

3.  Watch for conflicts

Getting disqualified is never a good thing, but conflicts of interest led to just that result in a couple cases providing some important take-aways.  For instance, in the government context, the DQ of an entire prosecutor’s office based on the chief prosecutor’s previous representation of the defendant while in private practice underscored the role that imputation plays under Model Rule 1.10 and 1.11 in spreading the “taint” of a disqualifying conflict.  And a lawyer who represented a massage parlor in the sale of the business was DQ’d in a suit over the deal because his previous representation of the buyer was “substantially related” to his work for the seller under the state’s version of Model Rule 1.9.

4.  Keep it confidential

Technology played a role in two situations last year that spotlighted confidentiality concerns.  In January, lawyers for President Trump’s former campaign chairman Paul Manafort failed to redact a document properly, leading to disclosure of the hidden contents when it was filed with the court.  And a lawyer’s Facebook posts that disclosed enough information about a client that she recognized herself resulted in a public reprimand for violating the duty of confidentiality.  The place where social media, technology and our confidentiality obligations intersect is a place to be cautious.

5.  Patrol the border

Finally, beware of possible pitfalls related to multi-jurisdictional practice and the unauthorized practice of law.  Last year a lawyer not licensed in Ohio was hit with an injunction and a stiff fine for UPL for providing legal services to six Ohio residents.  And if you are in-house counsel, and the jurisdiction where you are working has registration requirements (many now do), this is a good time to check and make sure you are in compliance.  (Here is a chart with links to state requirements posted by the ABA’s Center for Professional Responsibility and updated as of November 2019.)

Happy 2020 from all of us at The Law for Lawyers Today — make it a year of ethical practice!

If you’re making a New Year’s resolution to improve your time-keeping and billing habits, you can draw inspiration from this cautionary tale, detailing how a Massachusetts lawyer, a partner at a large firm, has been suspended for six months for overbilling clients at her prior firm.

3,000+ billable hours?!

As widely reported, the partner’s prior firm started investigating her 2015 time charges after she reported working 3,173 billable hours and more than 720 nonbillable hours.  According to the disciplinary opinion, the hours were not based on contemporaneous timekeeping.  Instead, the partner had her assistant create billing reports.  To do that, said the opinion,  the lawyer’s assistant would try to find and gather together notebooks the partner kept.  Then, the assistant “also would review the respondent’s calendar, correspondence files, pleading binders, and electronic mail messages.  She then would create a ‘weekly time report’ for the tasks the assistant believed the respondent had performed, as reflected in those documents.”  The partner would then review the drafts and make handwritten changes.  Often, this process would jog the partner’s memory and she would add charges that had not been reflected in her e-mail, calendar or notepads, she said.

The partner also allocated or re-allocated her own time to associates.  She testified at the disciplinary hearing that this was partly because she had carried out tasks that were more appropriate for an associate, or because the client’s guidelines would not permit more than one lawyer to attend a deposition, for example.  She also said that she sometimes added her own recalled time to an associate’s time-charge because “she believed that ‘creating [her] own new entry would have been an administrative burden that would then have required all of the draft bills to be re-run and that she ‘was always being pressured to get [her] bills done.’”

After the investigation, the partner left her prior firm; all but one of her clients followed her to her new firm.  The prior firm decided to return or credit to clients $260,000 in estimated overbilling.

At the hearing, it was undisputed that the partner was a hard worker, and that her clients were happy with the excellent results she achieved for them.  One even repurposed its fee refund and devoted it to a staff party, and invited the partner to attend.

But the disciplinary hearing panel was not so sanguine about the partner’s conduct.  It found that she violated the state’s versions of Model Rule 1.5(a) by charging a clearly excessive fee through charging more time than she actually worked and Model Rule 8.4(c) by conduct reflecting dishonesty, fraud, deceit or misrepresentation.  The reviewing board, and in turn the intermediate court of appeals, agreed.

The court particularly noted that “Client satisfaction does not preclude finding fees ‘excessive’” within the meaning of the ethics rules.

If I could save time in a bottle….

Like Jim Croce sang, you can’t capture time in a bottle, but you can and should keep contemporaneous time records and use them as the basis for billing your client whenever an engagement calls for hourly billing.  There are scads of software programs that can help you do that — or use pencil and paper.

Trying to recreate days or weeks of time entries based on vague clues about what you might have been doing is a sure way to cheat yourself out of potentially billable time — or, as the court found here, to cheat the client by overbilling.  (It can also lead to staff burn-out.  You can only sympathize with the partner’s assistant who had to try to recreate her time.)  Mark-ups, re-allocations, billing for your own perceived value of the time – all are inappropriate and can subject you and your firm to a whole range of problems, as it did in this case.

The partner in this case has not heard the last of it:  The professional conduct board is appealing the six-month suspension order and seeking a stiffer penalty.

Start 2020 off on the right foot with good time-keeping practices.

As widely reported in the news, the Seventh Circuit Court of Appeals last month harshly rebuked an Illinois lawyer for submitting a rambling 86-page appellate brief that the court said was “incoherent” and “gibberish.”  Quotes from the brief indeed made it appear deficient.  (One section, said the court, consisted solely of the heading “GAMESMANSHIP” and the statement that “Defendants have been ‘gaming’ the system.”)

But in the court’s sanctions order issued Monday, requiring the lawyer to pay legal fees and double costs, a new detail became widely known — namely, the lawyer said that his client had written the brief, and with his permission used the lawyer’s credentials to file the brief with the court.

“Monstrosity”

Last month, in upholding summary judgment in favor of the defendant employer in the discrimination suit, the Seventh Circuit said there was no evidence to support the claims of the lawyer’s client (the plaintiff) and the appeal was “utterly frivolous.”  The court went on to label the brief a “monstrosity.”

The sanctioned lawyer’s client had launched the case in the district court pro se, with a 386-paragraph complaint.  After the employer moved for summary judgment, she filed a response that the appeals court called “woefully noncompliant” with the local rule governing summary judgment briefs.  The court said that the response lacked the required sections, was a “disorganized … hard-to-decipher mess” and failed to cite appropriate evidence to oppose summary judgment.

On appeal, the formerly-pro se plaintiff was represented by the lawyer.  The Seventh Circuit’s November 7 ruling disposed of the client’s substantive arguments and quickly turned to sanctions against the lawyer under Federal Appellate Rule 38, calling the appeal a “shameful waste of judicial resources.”  In an opinion that has been called a “vicious benchslapping,” the court called out the brief for its legally and factually baseless assertions, “impenetrable arguments,” and even being a “typographical nightmare.”

“Most embarrassing” moments

At oral argument, the court noted in its November opinion, the lawyer had stated that he is a solo practitioner who “tries to get the help of … clients and whoever can provide help to [him]” and then “merge[s] that information.”

The court found that statement to be cryptic.  But in the lawyer’s response to the court’s show cause order on sanctions, it became clear what had happened:  the client had written the brief herself.

The court said that the lawyer explained in his response “that he did not have time to write an appellate brief, review the district court’s order, or examine the record.”  And he also “confessed that he allowed [the client] to submit an appellate brief that she prepared herself,” authorizing her to use his name, electronic signature and filing credentials.

In his response, the lawyer further explained that he had been a longtime friend of the client and “reluctantly agreed to do her oral argument after she asked me several times.”  When the briefing deadline came due, he “did not have the time … to attempt to rewrite [the client’s] brief and had to rely on the document that [the client] herself provided.”

The lawyer said in his response that during the oral argument he had “suffered through the most embarrassing and stressful moments of my legal career and perhaps my life,” and rued the tarnishing of his reputation after 32 years of practice.  He apologized for his “grave errors of judgment.”

In ordering the lawyer to pay attorney fees and double costs, the court noted his contrition, but said sanctions were merited based on the needless use of judicial resources and the burden and expense to the defendants.  Defendants were ordered to submit their fee-and-cost statement in early January.

Reverse-ghostwriting?

If you’re a litigator, you’ve certainly been up against briefing deadlines.  And I’m guessing that most of us have been subject to the entreaties of friends or family members who want us to do work for them when we really don’t have the time (or inclination, or know-how) to help.

These combined pressures can sometimes lead us to judgment errors.  Many federal cases say that a lawyer shouldn’t ghostwrite a brief for a client, while Model Rule 1.2(c) on limited scope representation and ABA Ethics Opinion 07-446 (May 5, 2007) (as well as some state ethics opinions) suggest that it can sometimes be permitted.  (Here and here are some discussions on the issue.)  But the opposite — letting a client submit her own work as yours, a kind of reverse ghostwriting — might be problematic.  Model Rule 8.4(c) bars all forms of dishonesty, fraud, deceit and misrepresentation.  Model Rule 3.3(a) bars making false statements of fact to a tribunal.

Letting someone sign your name to a pleading can obviously be risky, and if you do so without even knowing what’s in the document, the chances of adverse outcome — a bench slap, sanctions or worse — are magnified.  Be careful out there, and avoid the professional embarrassment that can come when you give in to a bad idea.

Last month, the New York State Bar Association Committee on Professional Ethics issued Opinion 1177, reaffirming that the New York Rules of Professional Conduct “permit a lawyer to assist a client in conduct designed to comply with state medical marijuana law,” even though the client’s conduct is prohibited by federal narcotics laws.

Reaffirming an earlier conclusion

The Committee first addressed this issue in a 2014 opinion, prompted by New York’s adoption that year of the Compassionate Care Act, which legalized medical marijuana.

In light of the conflict between the state law and federal narcotics laws that criminalize all marijuana without exception, the Committee considered whether New York’s version of Model Rule 1.2(d) —  which prohibits counseling or assisting clients “in conduct that the lawyer knows is illegal” – permits a lawyer to advise and assist clients seeking to act in compliance with New York state’s medical marijuana law.  The Committee concluded that the answer was “Yes.”

Conclusions based on federal enforcement policy

The Committee based its 2014 opinion specifically on “current federal enforcement policy,” noting the U.S.  Justice Department’s “Cole Memorandum” of August 29, 2013, which restricted “federal enforcement of the federal marijuana prohibition when individuals and entities act in accordance with state regulation of medical marijuana.”

Although then-Attorney General Jeff Sessions rescinded the Cole Memorandum in January 2018, the Committee’s opinion last month adhered to its earlier conclusion for several reasons:

  • First, the Committee cited Congress’s adoption in December 2014 of the Rohrabacher Amendment, a spending measure that bars the DOJ from using congressionally-appropriated funds to prevent states “from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”  The Committee noted that “[s]ince 2014, Congress has continuously renewed the Rohrabacher Amendment (by healthy bipartisan majorities) in subsequent spending measures.”  (In June 2019, the House of Representatives voted to expand the prohibition against interference to include adult-use cannabis regimes in additional to medical cannabis programs.)
  • Second, the Committee cited to United States v. McIntosh, in which the Ninth Circuit held in 2016 that the Rohrabacher Amendment “prohibits DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by” their respective states’ medical marijuana laws.
  • Finally, the Committee noted that “Sessions’ successor, William Barr, said during his confirmation hearing that he would not target state legal marijuana businesses, and would leave it to Congress to act.”

Thus, the Committee concluded in its recent opinion that “[t]he DOJ’s rescission of the Cole Memorandum does not meaningfully change federal law enforcement policy” and that, “[i]f anything, the adoption, continued approval, and implementation of the Rohrabacher Amendment reinforces [the Committee’s] earlier conclusion.”

Marijuana in the states

Currently, thirty-three states and the District of Columbia have laws permitting manufacture, distribution, and use of recreational and/or medical marijuana.  Most of these jurisdictions have either expressly amended their ethics rules or official comments to permit lawyers to advise clients on state-legal conduct or – like New York — have issued ethics opinions advising that lawyers may advise or assist clients in complying with state marijuana law without risk of professional discipline.  See, e.g., Oregon Rule 1.2(d); Ohio Rule 1.2(d)(2); Adv. Op. 201501 (Wash. St. Bar Ass’n 2015).  A July 2019 article in the ABA’s The Professional Lawyer collects many of the relevant state opinions and rules.

If you seek to represent clients in the cannabis space be sure to understand the lay of the land in the applicable jurisdiction.  After all, you don’t want to see your practice go up in smoke.