Can I advise and assist clients in Rhode Island's medical marijuana program when the conduct is legal under state law but a federal crime under the Controlled Substances Act?

Plain-English summary

Two inquiring attorneys proposed to provide legal services to individuals and businesses seeking licenses to cultivate, dispense, or supply medical marijuana and to help clients establish medical-marijuana businesses. They asked whether they could advise and assist clients in activities permitted under Rhode Island's medical marijuana law but unlawful under federal law. The tension arises from Rule 1.2(d), which bars a lawyer from counseling or assisting a client in conduct the lawyer knows is criminal, while allowing the lawyer to discuss legal consequences and to help a client make a good-faith effort to determine the validity, scope, meaning, or application of law.

The panel concluded the attorneys may provide the services. It reasoned that the Rules of Professional Conduct are "rules of reason" (Preamble and Scope, paragraph 14), and that clients participating in a lawful state medical marijuana program are not pursuing criminal conduct; a lawyer assisting them is helping implement complex state law, not assisting a crime. The panel stated it did not believe the Supreme Court, in adopting Rule 1.2(d), intended to bar lawyers from advising on Rhode Island law or assisting conduct that state law permits.

The panel supported its conclusion with several additional considerations: the 2013 Cole Memorandum, in which the U.S. Department of Justice said it would defer to state enforcement in states with strong regulatory systems; legislative findings in the Rhode Island statute noting that the vast majority of marijuana arrests are made under state rather than federal law and that compliance with the state chapter does not put Rhode Island in violation of federal law; and an emerging national consensus, with New Jersey, Ohio, Pennsylvania, Alaska, Connecticut, Hawaii, Illinois, and Oregon amending their Rule 1.2(d), other states adding comment language, and ethics committees in Arizona, Minnesota, and New York, plus policy statements in Florida and Massachusetts, permitting such assistance. The panel therefore concluded the attorneys may advise and assist clients in activities complying with the law, provided they also advise clients about related federal law.

In practice

Under this opinion, and under the Rhode Island rule as it stood at the time, a lawyer may counsel and assist clients participating in the state's medical marijuana program, including drafting documents, negotiating contracts, appearing before regulators, and organizing entities, despite the federal illegality of marijuana. The panel held that assisting compliance with a lawful state program is not assisting criminal conduct under Rule 1.2(d). The opinion conditions this on the lawyer also advising the client about related federal law, including the Controlled Substances Act.

Common questions

Q: Can I represent a client in Rhode Island's medical marijuana program even though marijuana is federally illegal?

A: The panel said yes. It held that assisting a client's participation in a lawful state program is not assisting criminal conduct under Rule 1.2(d), so long as the lawyer also advises the client about related federal law.

Q: What is the one condition the panel attached?

A: The panel required that the lawyer also advise the client about federal law, including the federal Controlled Substances Act.

Q: Why isn't this a violation of Rule 1.2(d)?

A: The panel reasoned that the Rules are rules of reason, that clients complying with the state program are not engaged in criminal conduct, and that the Supreme Court did not intend Rule 1.2(d) to bar advising on conduct Rhode Island law permits.

Background and rules framework

The opinion interprets Rule 1.2(d) (Model Rule 1.2, scope of representation), which prohibits counseling or assisting a client in conduct the lawyer knows is criminal or fraudulent, while permitting the lawyer to discuss legal consequences and to help a client determine the validity, scope, meaning, or application of law. The panel read the rule against the Rhode Island medical marijuana statute (the Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, G.L. 1956 section 21-28.6-1 et seq.) and the federal Controlled Substances Act, 21 U.S.C. section 841(a)(1), which classifies marijuana as a Schedule I drug.

Citations and references

Rules of Professional Conduct:

• MR 1.2(d) (scope of representation; no assistance to criminal or fraudulent conduct)
• RI RPC 1.2

Statutes:

• Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, G.L. 1956 section 21-28.6-1 et seq.
• Controlled Substances Act, 21 U.S.C. section 841(a)(1)

Cases:

• None cited.

Other opinions cited:

• Cole Memorandum, U.S. Dept. of Justice, "Guidance Regarding Marijuana Enforcement" (Aug. 29, 2013)
• Massachusetts Board of Bar Overseers and Office of Bar Counsel joint policy (Dec. 16, 2016)
• Rule 1.2(d) amendments in New Jersey, Ohio, Pennsylvania, and other states (cited as an emerging consensus)

See also

• RI EAP Op. 2016-05: Collaborating With a Nonlawyer in a Compliance Practice
• RI EAP Op. 2016-07: Lawyer-to-Lawyer Referral Emails

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2017-01.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Rhode Island Supreme Court
Ethics Advisory Panel Op. 2017-01
Issued February 13, 2017

FACTS:

Two inquiring attorneys have requested the Ethics Advisory Panel's guidance concerning the propriety of providing legal services relating to Rhode Island's medical marijuana law. The attorneys propose to provide legal services to individuals and businesses that seek assistance in obtaining licenses to cultivate, dispense, or supply medical marijuana. They also propose to assist clients in establishing medical-marijuana related businesses. The attorneys ask whether they may advise and assist clients who plan to engage in activities that are permitted under the Rhode Island medical marijuana laws, but which are illegal activities under federal law.

ISSUE PRESENTED:

May the inquiring attorneys provide legal services relating to Rhode Island's medical marijuana law when conduct that is permitted under the law is unlawful under federal law?

OPINION:

The inquiring attorneys may ethically advise clients about Rhode Island's medical marijuana law, and may ethically represent, advise, and assist clients in all activities relating to and in compliance with the law, provided that the lawyers also advise clients regarding federal law, including the federal Controlled Substances Act.

REASONING:

Medical marijuana was legalized in Rhode Island in 2006 with the enactment of "The Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act" (hereinafter, medical marijuana law). See G.L. 1956 § 21-28.6-1 et.seq. The statute permits the cultivation, manufacture, sale, distribution, possession, and use of medical marijuana. The activities permitted under the law are subject to a comprehensive regulatory scheme that requires oversight over all aspects of the medical marijuana program while also ensuring patient access and safety. See G.L. 1956 § 21-28.6-2(8). Under federal law, however, pursuant to the Controlled Substances Act, 21 U.S.C. § 841(a)(1), it is unlawful to grow, manufacture, dispense or possess marijuana, which is classified as a Schedule I drug.

The issue presented by the inquiring attorneys arises by virtue of Rule 1.2(d) of the Rules of Professional Conduct which prohibits lawyers from counseling or assisting a client in conduct that the lawyer knows is criminal. Rule 1.2(d) states:

(d) 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, meaning or application of law.

The Panel is therefore asked whether it is ethically permissible under Rule 1.2(d) for attorneys to provide legal services relating to Rhode Island's medical marijuana law. Those services may include advising clients of the validity, scope, meaning or application of the medical marijuana law, as well as legal services that assist clients with the requirements for participation in Rhode Island's medical marijuana program, such as drafting documents, negotiating contracts, appearing before regulatory agencies, and organizing business entities. A fairer characterization of the issue presented here is this: Should a lawyer who provides legal services relating to lawful activities under Rhode Island law be subject to discipline because those activities are unlawful under federal law? The Panel's response is "No." Several factors lead the Panel to this conclusion.

"The Rules of Professional Conduct are rules of reason." R.I. Rules of Professional Conduct, Preamble & Scope, ¶ 14. In the context of this inquiry, clients are seeking to participate in a lawful medical marijuana program. They are not pursuing a course of criminal conduct. It follows then, that when lawyers assist clients in a lawful medical marijuana program, the lawyers are not assisting those clients in conduct that is criminal. Rather, they are providing assistance in implementing and promoting state law, and in this instance, a state law that is sufficiently complex so as to warrant the assistance of lawyers. The Panel believes that when our Supreme Court adopted Rule 1.2(d), the Court never intended to prohibit lawyers from advising clients on Rhode Island law, or from assisting clients in conduct permitted under Rhode Island law.

Next, marijuana enforcement by the United States Department of Justice has been relaxed. In 2013, the Department of Justice issued a memorandum advising United States attorneys and law enforcement that, in states that have legalized marijuana in some form, and have strong regulatory and enforcement systems in place, the Department of Justice will defer to enforcement of state law by state and local law enforcement and their regulatory agencies. See Memorandum from James M. Cole, Deputy Attorney General, to U.S. Attorneys, "Guidance Regarding Marijuana Enforcement" (Aug. 29, 2013).

The Panel is further informed by the legislative finding in the Rhode Island medical marijuana law which states:

(2) According to the U.S. Sentencing Commission and the Federal Bureau of Investigation, ninety-nine (99) out of every one hundred (100) marijuana arrests in the United States are made under state law, rather than under federal law. Consequently, changing state law will have the practical effect of protecting from arrest the vast majority of seriously ill people who have a medical need to use marijuana. G.L. 1956 § 21-28.6-2(2).

The Panel is also guided by an evolving consensus among courts and ethics committees, which permits lawyers to assist clients in navigating the statutory and regulatory structure of marijuana legislation. Several state supreme courts have amended their Rule 1.2(d). Most recently, the supreme courts in New Jersey in August 2016, Ohio in September 2016, and Pennsylvania in October 2016, amended their rules to make such assistance expressly permissible. The New Jersey Supreme Court added the following to the Court's Rule 1.2(d):

A lawyer may counsel a client regarding New Jersey's medical marijuana laws and assist the client to engage in conduct that the lawyer reasonably believes is authorized by those laws. The lawyer shall also advise the client regarding related federal law and policy.

Alaska, Connecticut, Hawaii, Illinois, and Oregon have similarly amended Rule 1.2(d). The states of Colorado, Nevada, Vermont, and Washington have added similar language to the comments to their Rule 1.2.

Ethics committees in several states, including Arizona, Minnesota, and New York, have issued ethics opinions concluding that it is ethically permissible for lawyers to provide legal services relating to their jurisdictions' marijuana laws. The Florida Bar Board of Governors and the Massachusetts Board of Bar Overseers have issued policy statements relating to marijuana laws. The joint policy of the Massachusetts Board of Bar Overseers and Office of Bar Counsel, issued on December 16, 2016, states:

Massachusetts Board of Bar Overseers and Office of the Bar Counsel will not prosecute a member of the Massachusetts bar solely for advising a client regarding the validity, scope, and meaning of Massachusetts statues regarding medical marijuana or for assisting a client in conduct that the lawyer reasonably believes is permitted by Massachusetts statues, 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.

Finally, the Panel considered the legislative finding in Rhode Island's medical marijuana law which states:

(4) States are not required to enforce federal law or prosecute people for engaging in activities prohibited by federal law. Therefore, compliance with this chapter does not put the state of Rhode Island in violation of federal law. G.L. 1956 § 21-28.6-2(4).

Accordingly, the Panel concludes that the inquiring attorneys may ethically advise clients about Rhode Island's medical marijuana law, and may ethically represent, advise, and assist clients in all activities relating to and in compliance with the law, provided that the lawyers also advise clients regarding federal law, including the federal Controlled Substances Act.