Breaking: Devastating Advisory Opinion from the Ohio Supreme Court Board of Professional Conduct

We’ve previously covered the topic of Ohio attorney professional ethics relating to House Bill 523 and the coming medical marijuana industry in Ohio. Well, today Ohio lawyers received the much-anticipated advisory opinion from the Board of Professional Conduct and it was…. less than encouraging.

I’m on the road coming back from an oral argument in central Ohio (I pulled over at a McDonald’s to write this, don’t worry), so I’ll hit the bullet points here and provide more in-depth analysis at a later time. Suffice it to say that the Board has chosen to follow the lead of the state’s that have drastically limited (if not outright prohibited) lawyer involvement in the marijuana industry.

From the opinion:

Under Prof.Cond.R. 1.2(d), a lawyer cannot deliver legal services to assist a client in the establishment and operation of a state regulated marijuana enterprise that is illegal under federal law. The types of legal services that cannot be provided under the rule include, but are not limited to, the completion and filing of marijuana license applications, negotiations with regulated individuals and businesses, representation of clients before state regulatory boards responsible for the regulation of medical marijuana, the drafting and negotiating of contracts with vendors for resources or supplies, the drafting of lease agreements for property to be used in the cultivation, processing, or sale of medical marijuana, commercial paper, tax, zoning, corporate entity formation, and statutory agent services. See also, Colo. Op. 125 (2013). Similarly, a lawyer cannot represent a property owner, lessor, supplier or business in transactions with a marijuana regulated entity, if the lawyer knows the transferred property, facilities, goods or supplies will be used to engage in conduct that is illegal under federal law. Even though the completion of any of these services or transactions may be permissible under Ohio law, and a lawyer’s assistance can facilitate their completion, the lawyer ultimately would be assisting the client in engaging in conduct that the lawyer knows to be illegal under federal law.

However, there is a range of conduct that the Board has deemed to be permitted:

[The current Rule] permits a lawyer to explain to the client the conflict that currently exists between state and federal law, 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. A lawyer may counsel and advise a client regarding the scope and general requirements of the Ohio medical marijuana law, the meaning of its provisions, and how the law would be applied to a client’s proposed conduct. A lawyer also can advise a client concerning good faith arguments regarding the validity of the federal or state law and its application to the client’s proposed conduct.

In addition to the permissible range of advice permitted under Prof.Cond.R. 1.2(d), the rule does not preclude a lawyer from representing a client charged with violating the state medical marijuana law, representing a professional license holder before state licensing boards, representing an employee in a wrongful discharge action due to medical marijuana use, or aiding a government client in the implementation and administration of the state’s regulated licensing program. With regard to the latter, lawyers assisting a government client at the state or local level in the establishment, operation, or implementation of the state medical marijuana regulatory system are not advising or assisting the client in conduct that directly violates federal law. The state or a local government is not directly involved in the sale, processing, or dispensing of medical marijuana prohibited by federal law, even though it is arguably enabling the conduct through the issuance of licenses and the maintenance of its regulatory system.

It appears, therefore, that until the Ohio Supreme Court amends the Rules of Professional Conduct Ohio marijuana businesses will be forced to operate without many of the kinds of professional legal advice that lawyers provide to clients in other industries. This result is simply untenable over the long term, given the regulated nature of the industry and the need for competent legal counsel.

I will follow up with an update on the course forward for Ohio lawyers and their clients in the medical marijuana industry.

A link to the full opinion can be found by clicking here.

Join us at the Marijuana Business Daily Crash Course Seminars in Cleveland and Cincinnati!

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I’m excited to announce that I will be one of the featured speakers at the Marijuana Business Daily Crash Course seminars taking place in Cleveland and Cincinnati next month, where I’ll have the opportunity to present and answer questions on the legal issues associated with retail dispensaries, marijuana processors, cultivators, and ancillary businesses in Ohio.

The Cleveland Crash Course seminar will take place on August 17 at the Doubletree Tudor Arms, with the Cincinnati seminar taking place on August 19 at the Kingsgate Marriott. Each seminar will begin at 10:00am and last until 6:00pm, including a networking lunch and networking cocktail reception following the presentations. 

I’m honored to present alongside some of the most influential voices in the industry, including Robert Carp, Diane Czarkowski, Troy Dayton, Meg Sanders, Leise Rosman, and Chris Walsh. More information about the Crash Course seminars can be found below. If you register to attend one of the seminars, drop me a line in advance so that we can chat at the lunch or cocktail reception. 

You can register for the seminars by clicking here

You can learn about the featured speakers by clicking here.

You can view the Crash Course agenda by clicking here.

If you are at all interested in getting involved in Ohio’s coming medical marijuana industry, you should absolutely attend one (or both!) of the Crash Course seminars in Cleveland and Cincinnati. I hope to see you there!

More about Marijuana Business Daily:

Founded in 2011, Marijuana Business Daily is the most trusted cannabis industry trade publication. Marijuana Business Daily is independent and non-biased, focusing on bringing top-notch professional news, financial information and research data to the marijuana industry. Marijuana Business Daily’s offerings include the Marijuana Business Conference & Expo, The Marijuana Business Factbook, Marijuana Industry Directory and Marijuana Business Magazine.

Attorney Ethics and Legal Marijuana

1280px-Ohio_Supreme_Court

With the recent passage of H.B. 523, medical marijuana in Ohio will become a reality this September. Most people are familiar with the fact that the rule-making process will take some time, but Ohio attorneys are presented with a more difficult question: can we even advise medical marijuana businesses? To answer this important question, among others, I recently sought an advisory opinion from the Ohio Supreme Court Board of Professional Conduct Advisory Opinion Committee. The Committee will be considering these questions and the Board will hopefully issue an opinion before the end of the summer.

By way of background, all Ohio lawyers are bound by the Ohio Rules of Professional Conduct. Included within those rules is a prohibition against advising or assisting clients in conduct “the lawyer knows is illegal” (Prof.Cond.R. 1.2(d)) as well a prohibition against committing an “illegal act that reflects adversely on the lawyer’s honesty or trustworthiness” (Prof.Cond.R. 8.4(b)). These provisions are implicated because, while more than half of the country has legalized marijuana in some form, it remains illegal at the federal level under the Controlled Substances Act.

Ohio attempted to address attorney discipline in Section 3796.24(A) of H.B. 523, which provides that a professional license holder “is not subject to professional disciplinary action solely for engaging in professional or occupational activities related to medical marijuana.” The problem, however, is that attorneys are regulated exclusively by the Ohio Supreme Court, so it is not clear that the legislature can prevent the Court from imposing discipline against Ohio lawyers for violating the Rules of Professional Conduct.

I am seeking an opinion on three distinct questions:

  1. Whether an Ohio lawyer may ethically counsel, advise, and represent medical marijuana cultivators, processors, retail dispensaries, testing laboratories, caregivers, and/or patients as each may be licensed or seek to become licensed under Ohio state law;
  2. Whether an Ohio lawyer (or a member of a lawyer’s immediate family) may ethically operate or hold an ownership interest in a medical marijuana cultivator, processor, retail dispensary, and/or testing laboratory as each may be licensed (or may apply for a license) under Ohio state law; and
  3. Whether an Ohio lawyer may ethically use medical marijuana as provided by Ohio state law.

Generally speaking, most states that have considered these issue have come down in favor of attorney representation of legal marijuana businesses, including Arizona, Colorado, New York, Washington (through the King County Bar Association), California (through the San Francisco Bar Association), and Illinois. A minority of states, such as Hawaii, have taken the opposite viewpoint. Connecticut’s opinion on the topic of advice to marijuana businesses offered little guidance, although Connecticut does allow for attorneys to use medical marijuana. In addition, Washington has approved attorney ownership of marijuana businesses and also attorney use of marijuana.

Guidance from the Advisory Opinion Committee has probably never been more imperative than when it comes to medical marijuana. Marijuana businesses not only have to navigate a complicated state regulatory environment, but also have to deal with the ever-changing federal approach to cannabis. Here’s hoping that Ohio lawyers have an advisory opinion sooner rather than later so that our role in this industry can have clarity.

To view my full request for an advisory opinion, click here.

You can also read about the request for an advisory opinion on Cleveland.com by clicking here.

Drugged Driving?

Ohio is one of six states that have legal tests in place to determine if a driver is impaired by marijuana – but what do these tests really tell us? Not much, according to a recent study commissioned by the American Auto Association (AAA), the nation’s largest automobile club. According to their study it is not possible to set a simple blood-test threshold for THC (the chemical responsible for marijuana’s psychological effects). They insist that the tests have no scientific basis at all.

Determining whether someone is impaired by marijuana is far more complex than the simple  tests that have been developed for alcohol. According to AAA’s CEO Marshall Doney, “In the case of marijuana, this approach is flawed and not supported by scientific data.”

Marijuana is not metabolized by the body in the same way as alcohol – there is no science that shows that drivers become impaired when their blood reaches a specific level of THC. It is possible for some drivers to remain unimpaired with relatively high levels of THC in their system. Others drivers with lower levels of THC in their system may be entirely impaired behind the wheel – and this inconsistency seriously discredits any universal THC standards for impairment.

A lot depends on the individual when it comes to marijuana. THC persists in the blood of frequent marijuana users long after use, while it dissipates more rapidly among occasional users. The current tests in place can only tell us if a driver has merely used the drug at some point – the presence of THC’s metabolites can linger in the body weeks after use. This could lead to the inappropriate conviction of drivers who are otherwise operating their vehicle safely. Further, the body processes active THC very quickly, so a driver may very well fall below the legal threshold before a blood test is administered.

Exactly how dangerous is driving under the influence of marijuana? It is about as dangerous as driving with a “noisy child in the back of the car,” according to Mark A. R. Kleiman, an NYU professor and specialist in issues involving drugs and criminal policy. By comparison, driving while using a hands-free cellphone quadruples the risk of an accident.  Kleiman also noted that the average alcohol content in drunk driving cases renders you 15 times more likely to crash your car.

According to AAA – motorists are being convicted of driving under the influence of marijuana based on what seem to be arbitrary state standards that have no connection to whether the driver was actually impaired.

Sources:

http://www.dispatch.com/content/stories/local/2016/05/10/0510-ohios-limit-for-marijuana-driving-isnt-scientific.html

http://norml.org/library/item/marijuana-and-driving-a-review-of-the-scientific-evidence

http://abcnews.go.com/Politics/wireStory/scientific-basis-laws-marijuana-driving-questioned-39001339

 

Ohio’s General Assembly Votes to Legalize Medical Marijuana

Credit to the Capitol Square Review and Advisory Board (CSRAB)

Yesterday the Ohio General Assembly completed its work on HB 523 by passing the final version of the bill to legalize medical marijuana in Ohio. The bill is now in front of Governor John Kasich, who has 10 days from passage to act on it. Should Governor Kasich not sign it, the bill would still become law and take effect 90 days after the Governor’s signature (or 90 days after the 10th day if he does not sign, but also does not veto the legislation). When reached for comment, Kasich spokesman Joe Andrews would not confirm that Governor Kasich would sign the bill, and only told Jackie Borchardt with Cleveland.com that “[h]e’s said if we need it and we got a good bill he’d be OK with it[.]” In the past, however, Kasich has signaled support for medical marijuana.

HB 523 allows for patients suffering from a number of conditions to use and possess a 90-day supply of medical cannabis in various forms, but there is a prohibition on smoking cannabis. The list of conditions includes:

  1. HIV/AIDS;
  2. Amyotrophic lateral sclerosis (ALS);
  3. Alzheimer’s disease;
  4. Cancer;
  5. Chronic traumatic encephalopathy (CTE);
  6. Crohn’s disease;
  7. Epilepsy or another seizure disorder;
  8. Fibromyalgia;
  9. Glaucoma;
  10. Hepatitis C;
  11. Inflammatory bowel disease;
  12. Multiple sclerosis;
  13. Pain that is either (a) chronic and severe, or  (b) intractable;
  14. Parkinson’s disease;
  15. Post-traumatic stress disorder;
  16. Sickle cell anemia;
  17. Spinal cord disease or injury;
  18. Tourette’s syndrome;
  19. Traumatic brain injury; and
  20. Ulcerative colitis.

Ohioans can submit petitions to the State Medical Board to include additional conditions later on. The final version passed by the General Assembly does have some differences from the substitute bill offered by Senator Burke during Senate Committee hearings. For example, the Committee modified the definition of eligible “pain” to include that which is either chronic and severe, or intractable — the prior version required pain to be chronic, severe and intractable, which would greatly limit the number of eligible patients. Second, the Committee removed the requirement for pharmacists to be present in dispensaries. Finally, the legislation splits the regulatory responsibility for the medical cannabis industry among three distinct agencies:

  1. The Department of Commerce, which is responsible for regulating cultivators and processors;
  2.  The State Pharmacy Board, which is responsible for regulating dispensaries, along with patient and caregiver registration; and
  3. The State Medical Board, which is responsible for regulating and training physicians to recommend medical cannabis.

The Medical Marijuana Advisory Committee will recommend rules to these three agencies, and Ohio’s medical cannabis industry will be up and running within 2 years of the legislation’s effective date. For the full text of HB 523 as passed by the Ohio Senate, click here. 

To be sure, this is not a perfect bill. It does not go as far as many advocates (including myself) had hoped. Among other things, the list of qualifying conditions is too restrictive, it gives too much unchecked authority to unaccountable political appointees, and the requirement that patients only possess a “90 day supply” of their medicine seems overly burdensome, especially considering patients who will likely have trouble making it out of their homes.

The real test begins once the three regulatory agencies begin writing the regulations. Will they allow innovation, entrepreneurship, and a vibrant industry that will provide safe and reliable access to cannabis for Ohio patients? Or will Ohio be like New York, with a system allowing for only a handful of dispensaries and a small number of registered patients?

It may very well be that the Ohioans for Medical Marijuana ballot initiative provides the best opportunity for Ohio patients to truly benefit from medical cannabis. HB 523 may, as critics argue, simply be too restrictive. But there is no real doubt that HB 523 is a step forward for Ohio patients. If you are somebody who has advocated for safe medical marijuana in Ohio for decades, then rejoice because your tireless efforts have borne fruit. But don’t celebrate too long, because the real fight is just beginning.

Stay tuned for deep dives into HB 523 and the rule making process going forward, as well as the progress for the Ohioans for Medical Marijuana ballot initiative.

The Transition From Policy to Practice

In the wake of a medical marijuana bill clearing the General Assembly, a discussion of policy can begin to transition into a discussion of science. The legitimacy of cannabis as a pharmaceutical has created controversy for decades – this is thanks in part to state and federal regulations that make it extremely difficult to conduct clinical studies. However, with Ohio’s impending stamp of approval, it is anticipated that marijuana researchers in the state will be put on a longer leash. As a result, people can begin to look to the possible benefits of medical cannabis as a legitimate alternative to more traditional options.

Despite the strain to acquire clinical data on marijuana, there is a lot we do know. Several biological studies indicate that marijuana could potentially aid symptoms in a variety of medical conditions, ranging from epilepsy to cancer. Just a few of the potential benefits of cannabis include:

  • Nausea – A compound found in cannabis, Tetrahydrocannabinol (THC), is a main component in some FDA approved anti-nausea drugs. The drugs are extremely effective in treating nausea and vomiting in chemo-bound cancer patients, as well as AIDS patients
  • Epilepsy – Marijuana has shown to reduce the number of epileptic seizures in children and adults who have types of epilepsy that are otherwise difficult to control with medication.
  • Cancer – Researchers at San Francisco’s California Pacific Medical Center found that Cannabidol, a compound found in marijuana, can “turn off” a gene that allows cancer cells to grow. According to the American Cancer Society, THC has been shown to slow or halt the growth of tumors completely
  • Nerve Pain – The THC found in marijuana can suppress the burning pain in the hands and feet caused by diabetes, AIDS, spinal cord injuries, etc.
  • Anxiety – According to studies at Harvard Medical School, cannabis acts as a low-dose sedative and allows those with crippling anxiety to improve their mood.

Continued research by scientists, doctors, and patients will explore the medicinal and therapeutic potential of pot, but the results thus far provide exciting prospects.

Sources:

http://www.nap.edu/read/9586/chapter/14#157

http://www.prevention.com/health/14-uses-medical-marijuana

Newsweek, “Strong Medicine” p. 11-13

Ohio Senate Committee Amends Medical Marijuana Bill

Attorney Tom Haren testifies before the Government Oversight and Reform Committee on the topic of marijuana legalization in Ohio.

Today I had the opportunity to offer testimony on H.B. 523 to the Ohio Senate Government Oversight and Reform Committee, which is considering the medical marijuana bill passed by the Ohio House last week.

My testimony focused on the need for clarity as to precisely how (and how many) licenses will be granted by the State. Last year Ohioans rejected ResponsibleOhio’s cartel not because they opposed legalizing medical cannabis ­– in fact, current Ohio polling shows 90% of Ohioans favor it – but because they opposed the consolidation of market power in favor of 10 wealth investors. I am concerned that without sufficient direction from the Ohio General Assembly, the entity charged with awarding medical cannabis licenses will restrict the market so that we arrive at a similar level of consolidation.

Ohio’s medical cannabis industry is estimated to generate $100 million in annual sales, and a market of that size will function best when it is open to competition. Top-down planning does not work in any segment of the economy, and medical cannabis is no different. Over-regulation and market restriction will turn away entrepreneurs and innovators, and leave Ohio patients with poor access to the medicine they need. Consequently, I asked the General Assembly to ensure that applicants for medical cannabis licenses are judged by their own merit and the benefit they can provide to Ohio patients, as opposed to arbitrary restrictions from political appointees.

A version of my written testimony can be read by clicking here. (Full disclosure: I cleaned up a typo from the version submitted to the Committee. I would fire my copy editor for the mistake, but (a) he works for free, and (b) he’s me.)

In other news, Senator David Burke offered a substitute bill making a number of changes to the bill sent from the House. Here are some of the most notable changes:

  1. The Medical Marijuana Control Commission, originally designed to oversee the medical cannabis industry in Ohio, will be advisory in nature. Most of the industry regulation will be done by the Ohio Pharmacy Board, with regulations specific to Ohio physicians done by the Ohio State Medical Board. The Commission will advise both of these Boards on industry regulation.
  2. The timeline to begin licensing cultivators would be cut in half.
  3. The programs for providing low-cost cannabis to veterans and low-income Ohioans would be eliminated.
  4. The substitute bill incorporates an affirmative defense for patients who obtained medical cannabis from other states prior to it being legally sold in Ohio.
  5. Each dispensary would be required to have a pharmacist present at all times.
  6. Alzheimer’s disease and fibromyalgia would be included in the list of conditions qualified for medical cannabis.
  7. The licenses granted to applicants would be tied to a particular location in the state.
  8. In order for an employee to lose unemployment benefits for using medical cannabis, the employer must have adopted and posted a policy prohibiting medical cannabis usage.
  9. Qualified pain will need to be chronic, severe, and intractable.

There are some improvements in these amendments (the affirmative defense, reducing the timeline to license cannabis cultivators) but there are also some disappointing changes (removing the program to assist low-income Ohioans/veterans and offering a restrictive definition of “pain”). I am hopeful that the General Assembly will correct these issues as they continue to debate the bill.

All in all, this bill is an improvement over the current prohibition on medical cannabis in Ohio, but there are still items that should be addressed to ensure that Ohio’s medical cannabis industry is an open marketplace that will truly benefit Ohio’s patients. I’ll follow process of the medical marijuana bill as it continues to move through the General Assembly and keep you informed of all the latest developments in Ohio marijuana law.

Correction: an earlier version of this post indicated that a physician was necessary at the dispensaries at all times. That was a typo (again with the copy editor). The substitute bill requires a pharmacist to be present at the dispensaries.

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