As some Pennsylvanians are breathing sighs of relief in light of the recent passage of House Bill SB3, which legalizes certain forms of marijuana for medicinal purposes, there has yet to be an official change to the Pennsylvania state legal ethics rules that would instruct and ultimately protect lawyers advising clients in the medical marijuana industry.

Last October, the Pennsylvania and Philadelphia Bar Associations gave opinions that the State Rules of Professional Conduct would have to be amended in order for lawyers to ethically advise clients about the use, sale, and cultivation of marijuana, given its status as a Schedule I controlled substance at the federal level; the use, possession, and transport of which is illegal under the Controlled Substances Act (“CSA”). A month later, in November, the Pennsylvania Bar Association adopted a resolution to amend Rule of Professional Conduct 1.2(d), which presently prohibits attorneys from counseling “a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” The amendment has been referred to the Disciplinary Board of the Pennsylvania Supreme Court, said a spokesman for the Administrative Office of Pennsylvania Courts. The spokesman said that it was his understanding that the proposed amendments would be published for public comment after SB3 passed.

“An amendment to Rule 1.2(d), at the very least, would remove the ambiguity that our profession is facing when trying to figure out whether we can enter this industry or not,” said Attorney William Roark, who has been involved in the developing field surrounding Pennsylvania’s Medical Cannabis Act. “Every attorney has to address that question with the PBA ethics opinion hanging over their head. It would be easier for the entire profession to answer if 1.2(d) is amended.”

On May 7, the Disciplinary Board of the Supreme Court of Pennsylvania released Pa.B. Doc. No. 16-779, featuring a proposed amendment to Rule 1.2(d) and a new addition to the rule itself (changes in bold):

  1. A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, except as stated in paragraph (e), 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 the law;
  2. A lawyer may counsel or assist a client regarding conduct expressly permitted by the law of the state where it takes place or has its predominant effect, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client’s proposed course of conduct.

The proposed rule will be available for comment up to and including June 3, 2016. It will then be reverted back to the Rules Committee for final recommendation to the Supreme Court. The Rules Committee’s next meeting is set for July.

Lawyers in other states have faced similar ethical concerns surrounding the passage of medical marijuana legislation. For example, Oregon’s Board of Governors proposed, and the House of Delegates approved, an amendment to the Oregon equivalent of Pennsylvania’s Rule 1.2(d) above: RPC 1.2(d). On Feb. 19, 2015, the Oregon Supreme Court adopted the amended Oregon RPC 1.2(d), which states:

(d) Notwithstanding paragraph (c), a lawyer may counsel and assist a client regarding Oregon’s marijuana-related laws. In the event Oregon law conflicts with federal or tribal law, the lawyer shall also advise the client regarding related federal and tribal law and policy.

According to the Oregon State Bar Bulletin from April 2015, the proposed amendments to Oregon RPC 1.2(d) were drawn from language included in the “commentary adopted by the Colorado and Nevada Supreme Courts to each of their Rules 1.2, and in the Arizona Formal Ethics Opinion.” The Oregon Bar noted that the “purpose of this provision is for lawyers to identify and warn clients of related and conflicting federal and tribal law and policy and refer their clients to lawyers with the appropriate level of expertise where necessary.”

Similarly, Illinois amended its Rule 1.2(d) by adding a subsection stating that a lawyer may “counsel or assist a client in conduct expressly permitted by Illinois law that may violate or conflict with federal or other law, as long as the lawyer advises the client about that federal or other law and its potential consequences.” Comment [10] to the Rule explicates that such amendment was purposely “adopted to address the dilemma facing a lawyer in Illinois after the passage of the Illinois Compassionate Use of Medical Cannabis Pilot Program Act effective January 1, 2014.” The amendment to Illinois Rule 1.2(d) took effect January 1, 2016.

Finally, the Washington state Committee on Professional Ethics issued Advisory Opinion 201501 to address attorney ethics concerns with respect to Washington’s medical marijuana legislation. In November 2014, the Washington Supreme Court adopted Comment [18] to RPC 1.2, which went into effect on December 9, 2014, and addressed legal ethics concerns for lawyers wanting to counsel “clients involved in marijuana-related business enterprises… Prior to adoption of the comment, the [Washington Supreme] Court published the suggested comment for a 60-day public comment period.”

The Pennsylvania proposed amendment to Rule 1.2 mentions some of the states (like Arizona, Hawai’i, and Colorado, to name a few) that have added Comments to their respective Rules 1.2, or amended their Rules 1.2 to allow attorneys to “ethically counsel or assist clients in matters that are permissible under their respective state laws.” Based on these states’ amendments to their respective Rules 1.2, it seems likely that the Pennsylvania Supreme Court will also make a similar amendment to its Rule 1.2. At this juncture, it seems that a positive result for lawyers wishing to counsel clients in this new industry is likely to ensue.