In an Advisory Opinion issued August 5, 2016, the Ohio Board of Professional Conduct advised Ohio lawyers that they might be violating federal law by advising clients in the medical marijuana industry, or by using prescribed marijuana themselves.
Ohio Sub. H.B. 523 permits the growth, processing, use, and sale of medical marijuana. Federal law, however, still criminalizes the distribution and/or use of marijuana (even for medical purposes).
In response to the conflict, the Board clarified that Rule 1.2 prohibits an attorney from engaging in or promoting illegal activity. However, the Board also noted that a lawyer may properly advise a client regarding the “consequences of engaging in conduct that is permissible under Ohio law but contrary to federal law, and the likelihood of federal enforcement given the policies of the current administration.”
So until Congress makes it legal to produce, distribute, and use marijuana, Ohio lawyers advising individuals or companies how to do so under Ohio law run afoul of the Ohio Rules of Professional Conduct—though attorneys can advise clients as to the legality of the client’s conduct.
Perhaps most surprisingly, after noting that lawyers are forbidden from committing illegal acts that reflect adversely on the lawyer’s honesty or trustworthiness, the Board stated that, a single violation of the federal law prohibiting sale or use of marijuana, “would not, by itself, demonstrate the requisite lack of honesty or trustworthiness to constitute a violation of Prof.Cond.R. 8.4(b).”
The Board makes a good faith attempt to reconcile an irreconcilable difference between state and federal law, and takes a common sense approach to a hot-button political issue. Although the Board acknowledges that, “A lawyer’s personal violation of federal law, under certain circumstances, may adversely reflect on a lawyer’s honesty, trustworthiness, and fitness to practice law in violation of Prof.Cond.R. 8.4(b) or 8.4(h),” the Board does not go so far as to say every instance of a lawyer using marijuana violates the ethical rules.
The Board will no doubt have occasion to revisit this issue as state and federal law changes over time, but this is a reasonable approach under the circumstances.
The full Advisory Opinion is here.