It’s a good time to be a marijuana lawyer. Even in the age of legalization, the criminal defense business is still busy—though as always, only poorly paid public defenders can be assured their clients, destitute after a raid, can come through with a check after trial—but there are now also thousands and thousands of would-be dispensaries, cultivators and other marijuana business hopefuls out there, seeking advice on what to do and how to do it in order to cash in on the nation’s multibillion-dollar green rush.
They all need lawyers—and in some states, cannabis business law is one area where a fresh-faced barrister just out of law school can claim just as much experience as someone whose J.D. has been gathering dust for decades.
That is, zero. But depending on what state the cannabis business client is located, the lawyer might have to give some advice they don’t want to hear:“Don’t under any circumstances cultivate, transport or furnish for sale any marijuana.”
Proffering any other advice, as the American Bar Association Journal recently observed, would be a violation of professional ethics, the first step on the road towards having to burn your law degree to heat your home in the winter.
In August, the state Board of Professional Conduct in Ohio—where law allowing medical marijuana went into effect on Sept. 8—issued a warning to all attorneys who might have been interested in offering legal services. The board cited a rule that prohibits attorneys from advising clients to engage in activities that the attorney knows to violate the law—any law, local, state or federal.
Since it’s widely known that state-legal cannabis activity violates the federal Controlled Substances Act, a lawyer can’t tell a client how to set up a marijuana business without violating professional ethics, the Ohio board found.
Until federal law changes, “a lawyer only may advise a client as to the legality of conduct either permitted under state law or prohibited under federal law and explain the scope and application of state and federal law to the client’s proposed conduct,” the board ruled, as the ABA Journal reported. “However, the lawyer cannot provide the types of legal services necessary for a client to establish and operate a medical marijuana enterprise or to transact with medical marijuana businesses.”
To pile on, the board also found that a lawyer using legal marijuana—even medical marijuana—also violates a lawyer’s code of ethics by presenting behavior that reflects poorly on the attorney’s “honesty or trustworthiness.”
Not that lawyers in the cannabis industry are being suddenly hit with ethics violations or being disbarred. Far from it—nobody appears to be even paying any attention to the board’s ruling, in Ohio or anywhere else, according to attorneys and legal experts interviewed by the ABA Journal.
On this, even the courts appear to be in cannabis’s corner.
Shortly after Ohio’s medical marijuana law went into effect, the state Supreme Court stepped in. The Court tacked on a paragraph to the professional conduct board’s rule that says a lawyer can, in fact, inform a client what conduct is “expressly permitted” under the state’s medical marijuana law.
Lawyers have to advise clients what they’re doing is federally illegal, but at the same time, they can also explain what’s right under state law.
Of course, there is one wrinkle, and it’s Donald Trump.
Attorneys who practice in federal courts may be in trouble if they start advising cannabis clients what to do. In Colorado, the ABA Journal noted, the U.S. District Court has adopted ethics rules identical to the state court, with one exception—they can’t tell clients how to comply with state law when it conflicts with federal.
To date, no lawyers have been punished for any such advice, but that could change “at the whim of our new president and/or his attorney general,” said Columbus, Ohio, attorney David F. Axelrod.
The idea of zealous courts penalizing lawyers more than a decade into the medical marijuana industry’s heyday in some states sounds outrageous and absurd, an out-of-left-field move. In other words, about as crazy as electing Donald Trump.
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