Lawyers who are consulted by clients operating medical marijuana businesses law permitted by state law face a dilemma.  Federal law remains in place, criminalizing possession and sale of marijuana.  Rule of Professional Conduct 1.2 (d) forbids counseling clients in unlawful conduct.  Although the U.S. Department of Justice announced that it would not enforce federal criminal laws when the conduct complied with state law there was still no safe harbor: a stroke of the Attorney General’s pen could change the policy.

Lawyers therefore sought advice from their state bar associations- the opinions of which do not bind courts or disciplinary authorities.  A 2011 Arizona bar association opinion said that a lawyer for such an enterprise must advise the client of federal law and “appropriately limit the scope of representation”.   A New York State Bar Association 2014 opinion was similar – explaining that declared that the federal policy of forbearance required that state regulatory policies be rigorously followed – a matter in which lawyers were an important source of compliance advice.  In many other states (Colorado, Maine, Washington, Illinois, and Alaska) similar opinionswere voiced.

When the New Jersey Supreme Court’s Advisory Committee on Professional Ethics’ lawyers and lay members faced the issue the circumstances were different: its rulings are binding, though subject to discretionary review by the Supreme Court.  The ACPE viewed the plain language of RPC 1.2 (d) and felt bound by it.  The Committee therefore referred the matter to the court itself.  After a public comment period the Court on August 1 amended the Rule itself thus granting greater protection than any Bar Association opinion can provide.  The revised Rule follows:

RPC 1.2 Scope of Representation and Allocation of Authority Between Attorney and Client
(d) A lawyer shall not counsel or assist a client in conduct that the lawyer knows is illegal, criminal or fraudulent, or in the preparation of a written instrument containing terms the lawyer knows are expressly prohibited by law, but a lawyer may counsel or assist a client in a good faith effort to determine the validity, scope, meaning or application of the law.
A lawyer may counsel a client regarding New Jersey’s medical marijuana laws and assist the client to engage in conduct that the Iawver reasonably believes is authorized by those laws. The lawyer shall also advise the client regarding related federal law and policy. 

I am a member of the New Jersey Supreme Court’s Advisory Committe on Professional Ethics. – gwc