Full Answer
Strictly construing Ohio Rule 1.2 (d), it found that Rule 1.2 (d) prohibits a lawyer from assisting a client in a marijuana business allowed under state law because the lawyer knows marijuana is illegal under federal law. 43 But subsequent to the advisory opinion, the Ohio Supreme Court amended Ohio Rule 1.2 (d) by adding a (d) (2) which reads:
The activities that may be considered within a normal representation for other clients may take a different cast when a marijuana business allowed by state law is involved. For example, a lawyer who served as general counsel for two medical marijuana dispensaries was publicly censured in Colorado.
Review of bank practices reveal numerous banks, included industry leaders, have accepted business from the marijuana industry.
The marijuana business is highly regulated in each jurisdiction that has allowed it, and the regulations are as complicated as any administrative rules ever adopted. At present there are numerous areas of the law in which state law and federal law are either in direct conflict or, at least, inconsistent.
As states continue to legalize cannabis for medicinal or recreational purposes, professional service firms are experiencing a rapid growth of new markets for their services. While this opportunity for growth is exciting, and despite the effect of state law, marijuana remains illegal under Federal Law.
If you are representing clients in the cannabis industry, you may still be able to obtain Professional Liability Insurance and CyberLock Lawyer Insurance from Lockton Affinity Lawyer.
A one page memo issued by Attorney General Jeff Sessions on January 4, 2018 rescinded the Cole memo, which stated that the federal government would not interfere with states that legalize recreational and/or medical marijuana, as long as they adhere to a set of guidelines.
Duane Morris – Duane Morris attorneys represent businesses and individuals at every level of the cannabis supply chain. Our clients include state-licensed adult-use marijuana, medical marijuana, and hemp cultivators, processors, distributors and dispensaries, whether vertically integrated or operating as standalone businesses, as well as investors in those businesses. The firm also represents the full range of business vendors that supply their products and services to the cannabis industry, such as raw materials, technology, advertising, social media, consumption products, and security companies.
Clark Howell (California) – “Women-owned and steered, we know what it’s like to chart your own course.” Led by attorney’s Ariel Clark and Nicole Howell, this firm handles corporate, regulatory, supply chain, commercial real estate, hemp & hemp products, and emerging medicines. They work with start-ups, brands & operators, investors, and ancillary service providers. The group also publishes the Green Frontier Bulletin.
Hiller PC – Hiller is best known for its federal cannabis lawsuit team – co-counsel Michael Hiller, Lauren Rudick, Joseph Bondy, and David Holland who filed a complaint in September 2017 to the United States District Court for the Southern District of New York with regards to twelve-year-old Alexis Bortell.
In these trying times, it’s always good to have an excellent lawyer on your side. A strong contract goes a long way towards protecting your interests and if you find yourself in a dispute, you certainly want someone who understands your business and can work with cannabis companies.
Recently, I traveled to Chicago to speak at a conference hosted by the American Bar Association (“ABA”) titled From Regs to Riches: Navigating the Rapidly Emerging Fields of Cannabis and Hemp Law. The Conference covered a broad range of cannabis topics including the tension between state and federal law on marijuana, navigating the licensing and start-up processes in a state that has just gone legal, advising clients in the hemp and hemp-derived CBD space, intellectual property issues, insurance coverage for marijuana businesses, the burgeoning global market for cannabis trade, and ethical issues a marijuana lawyer must consider. As you probably guessed from that title, that last point is going to be the focus of this post.
Though no two states Ethics are exactly alike, most states follow the ABA’s Model Rules of Professional Conduct in drafting their own rules. Model Rule 1.2 (d) states the following: A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss ...
If you do decide to consume marijuana, either for recreational or medical purposes, make sure that you are not intoxicated while on the job as that could have devastating results for both you and your client. If you consume after hours, pay attention to how your body reacts during working hours.
Currently, thirty-three states and the District of Columbia have laws permitting manufacture, distribution, and use of recreational and/or medical marijuana. Most of these jurisdictions have either expressly amended their ethics rules or official comments to permit lawyers to advise clients on state-legal conduct or – like New York — have issued ethics opinions advising that lawyers may advise or assist clients in complying with state marijuana law without risk of professional discipline. See, e.g ., Oregon Rule 1.2 (d); Ohio Rule 1.2 (d) (2); Adv. Op. 201501 (Wash. St. Bar Ass’n 2015). A July 2019 article in the ABA’s The Professional Lawyer collects many of the relevant state opinions and rules.
Last month, the New York State Bar Association Committee on Professional Ethics issued Opinion 1177, reaffirming that the New York Rules of Professional Conduct “permit a lawyer to assist a client in conduct designed to comply with state medical marijuana law, ” even though the client’s conduct is prohibited by federal narcotics laws.
The Act expressly permits the cultivation, distribution, and use of marijuana for medical purposes under the conditions stated in the Act. Conduct permitted by the Act may be prohibited by the federal Controlled Substances Act, 21 U.S.C. §§801-904 and other law.
Most significantly, as of 7 November 2018, thirty-three states and the District of Columbia have laws permitting the manufacture, distribution and use of either recreational or medical marijuana or marijuana component laws or a combination.
The conflict between state and federal law makes it particularly important to allow a lawyer to provide legal advice and assistance to a client seeking to engage in conduct permitted by Illinois law. In providing such advice and assistance, a lawyer shall also advise the client about related federal law and policy.
The Model Rules of Professional Conduct are primarily intended for adoption by state supreme courts as state rules to govern the conduct of lawyers admitted to practice law in jurisdictions. The Model Rules are also frequently used as models for various federal district and circuit courts, although those courts generally rely upon the states for primary admission and discipline of lawyers. Indeed, Congress has clarified that state supreme court disciplinary rules apply to lawyers employed by the Department of Justice and other agencies. 54
A lawyer does not violate the Model Rules of Professional Conduct, particularly Rules 1.2 (d) and 8.4 (c), by advising and/or representing a client in establishing, operating, or withdrawing from a medical or recreational business involving marijuana permitted by state law despite the existence of a conflict in laws between federal, state, and/or local jurisdictions. However, it is incumbent on the lawyer to fully inform the client of such conflicts and the potential risks involved. To do otherwise would deprive the client of legal advice and representation when it is most needed.
Because an individual becomes a prospective client does not either imply or mandate that a full attorney/client relationship will result. Either the prospective client or the lawyer may determine that an attorney/client relationship will not be appropriate.
The ABA Model Rules of Professional Conduct do not prohibit a lawyer from counselling or assisting a client regarding participation in or withdrawal from business and other opportunities that have occurred because a state law permits medical and/or recreational use of cannabis.
But in November 2017, her business partner signed a memorandum of understanding to open a dispensary with Marshall Crosby, a personal trainer in his 50s who did qualify. A native of Oakland’s impoverished east side, Crosby has lived a hard life.
But since New Year’s Day 2014, when Colorado opened the world’s first regulated recreational marijuana market, the business climate for weed companies has proven immensely difficult for a range of reasons, including high taxes, rapidly changing regulations and a still robust illicit market.
Oakland’s equity program had been laboriously developed over years to maximize not just jobs for Oaklanders but local ownership of marijuana companies. But the policy didn’t stop Crosby from partnering with an outside company. “It’s a classic story of gentrification,” Senter said following Meadow Lands.
Americans spend roughly $40bn annually on legal and illegal marijuana. Their appetite is almost certain to increase as it becomes easier to legally access the drug and the industry continues to promote pot as compatible with a healthy adult life.
Canada, true to form, has moved to legalize marijuana in a more orderly fashion than the US, with legalization day set for 17 October. The industry there perhaps gives their counterparts in the US a vision of the future.
Of the state legalization experiments, California is, by far, the largest and most complex. For growers who operated in California ’s gray and illegal markets and now want to transition into the legal market, the economics can be brutal.
The story of Amber Senter, a businesswoman and activist who attended the weekend campout, dubbed Meadow Lands, goes some way to explain why racial equity will be as difficult to achieve in cannabis as it is in the rest of American life.