Attorney Ethics and Legal Marijuana: Amendments Proposed to Rules 1.2 and 8.4

The recent advisory opinion issued by the Ohio Supreme Court Board of Professional Conduct has led to a myriad of concerns among lawyers and others in Ohio’s medical marijuana community. Thankfully, the Chief Justice of the Ohio Supreme Court is aware and the Court is moving to address these concerns:

“Although non-binding, the Court is aware that the advisory opinion has led some lawyers to question whether they can assist clients in complying with the new law,” Chief Justice Maureen O’Connor said. “The Court hopes to act expeditiously in addressing their concerns and, if necessary, amend ethics rules to clarify the role of attorneys in light of the new law.” She noted that attorneys in other states have faced similar ethics challenges.

The Court will consider the proposed amendments to the Rules of Professional Conduct later this month and, if approved, publish the rules for public comment. “Again, the Court intends to act as swiftly as possible,” Chief Justice O’Connor said. “However, we do not want to rush the process to the point of creating additional problems,” the Chief Justice concluded.

On August 17, our law firm submitted proposed changes to the Board of Professional Conduct as outlined below. These proposals, if accepted, would open legal services to the medical marijuana industry and further specify that lawyers may use medical marijuana as long as that use does not adversely affect the lawyer’s practice and client representation, and also that lawyers may own or operate a medical marijuana business.

We proposed that the Ohio Supreme Court should adopt a new Rule 1.2(f) that uses language similar to that used in Alaska:

(f) Notwithstanding division (d) of this rule, a lawyer may counsel and advise a client regarding Ohio’s marijuana laws, and may assist the client to engage in conduct that the lawyer reasonably believes is authorized by those laws. If Ohio law conflicts with federal law, the lawyer shall also advise the client regarding related federal law and policy.

This amendment would clarify that Ohio lawyers can advise and assist clients under Ohio’s medical marijuana laws, as long as the lawyer also advises regarding federal law and any consequences of conflicts between state and federal policy. We also proposed adopting a new comment to Rule 1.2, explicitly identifying that lawyers can ethically provide services that are prohibited by Advisory Opinion 2016-6.

As it relates to an attorney’s use of medical marijuana and ownership in a medical marijuana business, we proposed adding a new comment to Rule 8.4 that provides:

[6] Divisions (b) and (h) of this Rule do not prohibit a lawyer from engaging in conduct that the lawyer reasonably believes is authorized by Ohio’s marijuana laws, including R.C. 3796, et seq. and all administrative regulations promulgated pursuant to Ohio’s medical marijuana control program.

Therefore, an Ohio lawyer may use medical marijuana in a method the lawyer reasonably believes is authorized under Ohio law as long as such use does not adversely affect the lawyer’s work or representation of clients.

In addition, nothing in divisions (b) and (h) of this Rule prohibits a lawyer from having an ownership interest in, being employed by, or lending money to a medical marijuana enterprise that the lawyer reasonably believes is authorized under Ohio law.

This comment is necessary to protect lawyers using medical marijuana from discipline, as long as the lawyer’s use does not adversely affect the lawyer’s clients — similar to situations where an attorney chooses to use alcohol or when an attorney is prescribed medication to treat a medical condition.

We should know within the next few weeks how the Court intends to move forward and whether the Rules of Professional Conduct will be amended. One thing seems clear, however: the Court recognizes the untenable situation facing Ohio lawyers and the medical marijuana community and the Court intends to fix the problem.

You can view our firm’s submission in its entirety by clicking here. 

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