Any lawyer who wants to do business or advise clients in the marijuana industry must first consider State ethic rules before accepting representation. The Supreme Court of Ohio’s Board of Professional Conduct recently concluded that a lawyer cannot advise a client to engage in conduct that violates federal law.
Marijuana, medical and recreational, is considered illegal under federal law, this new ethics rule means a lawyer can’t provide legal services to any client who wishes to operate a medical marijuana enterprise or transact business with a person engaged in medical marijuana enterprises.
Ohio is the most recent state to pass such ethical standards. Last year, the Disciplinary Board of Hawaii’s Supreme Court similarly issued an opinion limiting the role lawyers can play in the marijuana dispensary industry. Likewise Pennsylvania’s Rules of Professional Conduct prohibits lawyers from counseling a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.
Federal Controlled Substances Act
The Controlled Substances Act (“CSA”) is the federal drug policy that regulates the manufacture and distribution of controlled substances like stimulants, narcotics, hallucinogens, and depressants. The Act categorizes drugs into five schedules based on their potential for abuse. Marijuana is considered a schedule one controlled substance. Because it is listed as a controlled substance, it is considered illegal under Federal law.
Discrepancy between State and Federal Laws
Medical marijuana is legal in twenty-three states and the District of Colombia. Many of those states have amended their ethics rules. Connecticut, for example, requires that a lawyer must inform his client of the conflict between Connecticut and federal law even though the state of Connecticut legalized medical marijuana. Arizona and Washington have taken a looser approach. In those states, a lawyer who fully advises a client of the Federal law implications and how they differ from State law can still advise a client so long as the counseled conduct is expressly permitted by state law.
Hawaii versus Ohio
Hawaii legalized medical marijuana about sixteen year ago, but only recently enacted a law that would license marijuana dispensaries for patients. The law set up a state-wide dispensary system with a total of up to 16 dispensaries. The law requires potential licensing candidates to have at least $1.2 million in the bank. Nevertheless, lawyers licensed by Hawaii are not permitted to give legal advice or assistance beyond counseling on the validity, scope, and meaning of the law to any individual who wishes to set up a dispensary or marijuana production center.
Hawaii’s Disciplinary Board cited two main reasons for its decision. The first reason is the fact that Congress hasn’t amended federal law since marijuana is still considered illegal. Secondly, Hawaii’s professional code of conduct states that “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, and meaning of the law.”
On the other hand, Ohio’s medical marijuana law will take effect September 8, 2016. Under the new marijuana law, people can possess and use the drug without going to jail. However, the law does not specify where these Ohio citizens can obtain marijuana since Ohio marijuana dispensaries are not yet set-up. Lawmakers have stated that their residents can travel to another state and bring the marijuana back.
Just like Hawaii, one of Ohio’s main reasons for prohibiting lawyers from counseling or assisting a client who wishes to associate with the marijuana industry is the illegality of marijuana at the federal level.
Ohio goes one step further and concludes that a lawyer who seeks to use medical marijuana or in any way participate in the medical marijuana business violates federal law, which could adversely reflect on the lawyer’s “honesty, trustworthiness, and fitness to practice law.” In that regard, Ohio lawyers are held to a higher standard and are seemingly prohibited from using medical marijuana themselves.