High Times: Ethics of Marijuana Advice

Marijuana laws in the US are rapidly changing. Colorado, Oregon, and Washington have legalized marijuana outright for recreational use. Twenty more states and the District of Columbia have legalized the use of marijuana for medicinal purposes.  Now, the Pennsylvania legislature has proposed a new law that would permit limited medical marijuana use.  Despite these changes at the state level, marijuana is still classified under federal law as a Schedule I drug that has no accepted medical use. Inconsistencies between state and federal laws create potential ethics dilemmas for professionals who seek to advise clients operating in the marijuana industry.  In order to assist professionals navigate this murky legal landscape, the Pennsylvania Bar Association Legal Ethics and Professional Responsibility Committee recently issued a formal ethics opinion directed to counsel who provide legal services to marijuana-related businesses.

As a threshold matter, the Committee noted in its opinion that Pennsylvania Rule of Professional Conduct 5.5 prohibits a lawyer from practicing law in a jurisdiction in violation of the regulations of that jurisdiction.  Thus, a Pennsylvania lawyer providing advice to clients operating a marijuana business in a foreign state must ensure that the advice does not violate that state’s laws or ethics rules.  If the lawyer determines that there is no violation of Rule 5.5, the Committee continued that the next step is for the lawyer to consider whether the advice has any potential to contribute to illegal activity in violation of Rule 1.2.

On this issue, the Committee determined that public policy favors professionals being permitted to advise clients on marijuana-related issues within a jurisdiction once that jurisdiction makes the decision to authorize some form of marijuana activity.  Nevertheless, a lawyer is still bound by the ethical requirements of Rule 1.2.  Accordingly, the Committee concluded that an attorney may provide services to a client that are strictly advisory, such as discussing the legal consequences of any proposed course of conduct and making a good faith effort to determine the scope of any marijuana law.  However, a lawyer may not assist the client actually operate the marijuana business, such as drafting or negotiating contracts for the purchase or sale of marijuana, because this activity is still illegal under federal law, regardless of the state standards.

Given the current inconsistencies in marijuana laws, professionals must tread cautiously when engaging clients who operate in this industry.  Professionals who cross the line from a purely advisory role to actual assistance risk violating ethics rules and could even open the door to potential criminal liability.