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Although then-Attorney General Jeff Sessions rescinded the Cole Memorandum in January 2018, the Committee’s opinion last month adhered to its earlier conclusion for several reasons: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