The smoke might eventually clear for Ohio lawyers who hope to help clients engage in the medical marijuana industry after it becomes legal in the state on September 8. On August 17, the state supreme court said that it had “directed its staff to prepare a draft amendment to the Ohio Rules of Professional Conduct that would clarify the services attorneys can offer clients seeking to comply with the state’s new medical marijuana law.” The announcement follows the non-binding ruling 12 days earlier by the state’s Board of Professional Conduct that Ohio lawyers can’t provide any legal services to help clients in connection with a medical marijuana enterprise.
Board: Medical marijuana “Yes,” legal services, “No.”
In contrast to Ohio’s upcoming state law, federal law designates marijuana as a Schedule I controlled substance, making its use for any purpose, including medical applications, a crime. Coincidentally, on the same day that the Ohio board issued its ethics opinion, the U.S. Drug Enforcement Agency declined to revisit the Schedule I designation. Since 2013, however, the U.S. Department of Justice has had the general policy of not interfering when marijuana is used medically under state law.
The disconnect between the federal and state law on marijuana is what creates the ethics problem for Ohio lawyers, said the Board.
Ohio Professional Conduct Rule 1.2(d) prohibits assisting a client who engages or seeks to engage in conduct the lawyer knows to be illegal. And according to the Board, the rule “does not distinguish between illegal client conduct that will, or will not, be enforced by the federal government.” If the legal services to be provided can be construed as assisting the client in violating federal or state law, the lawyer is barred from providing them to the client.
The Board was “mindful that the current state of the law creates a unique conflict for Ohio lawyers,” and makes it impossible for some clients to get legal services in an area deemed lawful by the Ohio legislature. But any remedy, the Board said, must come via amendment of Rule 1.2 by the state supreme court.
Now, just 12 days later, the court will launch a process that will possibly result in such an amendment.
Paths of other jurisdictions
Unlike Ohio, some other bars and states have used ethics opinions to hew a path for their lawyers to help clients who want to work in the marijuana space. As we wrote last summer, the San Francisco bar association gave the green light to lawyers to advise marijuana businesses — precisely because of the divergence between state and federal law. “Assisting the client who wants to comply with state and local laws is not the same as advising the client to violate federal laws,” said the S.F. bar ethics committee. (Importantly, California’s Rule 1.2(d) differs slightly from the analogous Model Rule.)
Other states have taken the approach that Ohio will now consider, by amending their rules. In 2014, the Nevada Supreme Court amended its Rule 1.2 to add a comment expressly permitting lawyers to counsel a client “regarding the validity, scope, and meaning of” the state’s medical marijuana statute, and to “assist a client in conduct that the lawyer reasonably believes is permitted.” Public comment and hearings on further proposals to amend the black letter rule are scheduled for later this year.
Other state ethics boards, like Ohio’s, have expressed a desire to have the state supreme court clarify the ethics murk with an express rule amendment; but unlike Ohio, some have given lawyers a qualified go-ahead in the meantime. The Illinois State Bar Association’s 2014 advisory opinion said that “the provision of legal advice to those engaged in nascent medical marijuana business is far better than forcing such businesses to proceed by guesswork,” and that providing legal services to such clients is “consistent with the Rules of Professional Conduct.”
As always, stay tuned — more developments are sure to follow.