Lawyers Advising Marijuana Clients
Different state bar associations have issued guidance on whether lawyers can provide counsel to clients operating in the medical marijuana industry. Here are a few highlights on opinions as to how lawyers should govern their relationship with clients in state legal cannabis operations:
Arizona: A lawyer may ethically counsel or assist a client in legal matters expressly permissible under the Arizona Medical Marijuana Act (“Act”), despite the fact that such conduct potentially may violate applicable federal law. Lawyers may do so only if: (1) at the time the advice or assistance is provided, no court decisions have held that the provisions of the Act relating to the client’s proposed course of conduct are preempted, void, or otherwise invalid; (2) the lawyer reasonably concludes that the client’s activities or proposed activities comply fully with state law requirements; and (3) the lawyer advises the client regarding possible federal law implications of the proposed conduct if the lawyer is qualified to do so, or recommends that the client seek other legal counsel regarding those issues and appropriately limits the scope of the representation.
Connecticut: Lawyers may advise clients of the requirements of the Connecticut Palliative Use of Marijuana Act (“CPUMA”). However, the Connecticut Bar has drawn a distinction on advising clients on the licensing and registration requirements of the Act and assisting clients with the rulemaking and regulatory process regarding medical marijuana, and providing advice and services to aid the client in operating a marijuana enterprise that violates federal law. The court does not give a definitive answer as to its opinion on the latter: “Lawyers mat not assist clients in conduct that is in violation of federal criminal law. Lawyers should carefully assess where the line is… and not cross it.” However, whether the lawyer is advising on CPUMA requirements or advising on how to operate under CPUMA, the lawyer must always inform the client of the conflict between state and federal law regarding marijuana, irrespective of whether federal authorities in Connecticut are actively enforcing the federal law or not.
Florida: At its May 23, 2014 meeting, the Florida Bar Board of Governors adopted the following policy regarding legal services relating to medical marijuana : “The Florida Bar will not prosecute a Florida Bar member solely for advising a client regarding the validity, scope, and meaning of Florida statutes regarding medical marijuana or for assisting a client in conduct that the lawyer reasonably believes is permitted by Florida statutes, regulations, orders, and other state or local provisions implementing them, as long as the lawyer also advises the client regarding related federal law and policy.”
Illinois: Lawyers may (1) provide legal advice on how their clients can conform their conduct to the Compassionate Use of Medical Cannabis Pilot Program Act, 410 ILCS 130/5 et. seq. (“Act”), (2) provide services that go beyond mere advisement, e.g., negotiating and drafting contracts on behalf of client’s operating under the Act, and (3) provide legal advice to a municipality on zoning related to the Act. However, lawyers are prohibited from advising clients on how to evade the Act’s regulatory scheme, because such conduct would fall outside of the safe harbor provided by the DOJ, “whether the operation is demonstrably in compliance with a strong and effective state regulatory system.”
Ohio: Ohio lawyers are only permitted to provide advice as to the legality and consequences of a client’s proposed conduct under state and federal law, and explain the validity, scope, meaning, and application of the law. Thus, an Ohio lawyer is prohibited from providing legal services necessary for a client to establish and operate a medical marijuana enterprise, or to transact business with a person or entity engaged in a medical marijuana enterprise. Such prohibited services include completion and filing of marijuana license applications, negotiations with regulated individuals and businesses, and the drafting of lease agreements or other documents pertaining to a property being used for the cultivation, processing, or sale of medical marijuana.
Looking to start a marijuana practice in your home state or just wondering whether local lawyers will be limited in their services? Make sure to review whether your state bar association has issued any guidance to lawyers regarding advising clients in the marijuana industry.