On November 18, 2019, the New York State Bar Association’s Committee on Professional Ethics (the “CPE”) issued an opinion that “lawyers may assist clients in complying with New York’s medical marijuana laws,” even though marijuana/cannabis remains illegal under federal law.1
The CPE reasoned that, although Rule 1.2(d) of the New York Rules of Professional Conduct (the “Rules”) states that “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal,” a lawyer may generally advise a client about the reach of the law, and therefore “may give advice about whether undertaking to manufacture, transport, sell, prescribe or use marijuana in accordance with” New York’s regulatory scheme would violate federal narcotics law.
The CPE further explained that, although manufacturing, transporting, selling, and using marijuana/cannabis remains illegal under federal law, Rule 1.2(d) should not be interpreted as prohibiting attorneys from advising clients on how to comply with the state marijuana/cannabis law. The CPE explained that “the situation is different where the state executive branch determines to implement the state legislation by authorizing and regulating medical marijuana, consistent with current, published federal executive-branch enforcement policy, and the federal government does not take effective measures to prevent the implementation of the state law.”
Under those circumstances, the CPE framed the question as: “whether a lawyer may assist in conduct under the state medical marijuana law that the lawyer knows would violate federal narcotics law that is on the books but deliberately unenforced as a matter of federal executive discretion.”
In concluding that lawyers may assist clients in complying with New York’s medical marijuana laws, the CPE explained that, in adopting Rule 1.2(d), “our state judiciary [did not mean] … to declare a position on this [cannabis] debate or … to preclude lawyers from counseling or assisting conduct that is legal under state law.”
In reaching its opinion, the CPE noted that “Not only does the DOJ continue to permit states to implement their medical marijuana laws, but federal legislation now prohibits the DOJ from preventing states from doing so.”
Accordingly, the CPE reaffirmed its opinion from 2014 (CPE Opinion 1024 (2014)) that “a lawyer may ethically assist a client in conduct designed to comply with New York’s medical marijuana law” and expressly stated that “the Rules permit lawyers to give legal assistance regarding the [Compassionate Care Act (New York’s medical marijuana law)] that goes beyond a mere discussion of the legality of the client’s proposed conduct.”2
The CPE’s November 2011 opinion therefore reaffirms that attorneys in New York State may ethically advise clients on how to comply with New York’s marijuana/cannabis laws, and implies that an attorney who does so will not have to risk his/her law license in the process.
See New York State Bar Association’s Committee on Professional Ethics Opinion 1177 (2019) (Citing CPE Opinion 1024 (2014)) (“Implicitly, the state law authorizes lawyers to provide traditional legal services to clients seeking to act in accordance with the state law. . . . Nothing in the history and tradition of the profession, in court opinions, or elsewhere, suggests that Rule 1.2(d) was intended to prevent lawyers in a situation like this from providing assistance that is necessary to implement state law and to effectuate current federal policy.”)
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