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NJ Supreme Court Amends Attorney Ethics Rules, Effective Today, to Expressly Allow Counseling Regarding NJ Medical Marijuana Laws, Despite Conflict with Federal Law and Policy

The New Jersey Supreme Court has amended Rule of Professional Conduct 1.2(d), which previously stated:

A lawyer shall not counsel or assist a client in conduct that the lawyer knows is illegal, criminal or fraudulent, or in the preparation of a written instrument containing terms the lawyer knows are expressly prohibited by law, but a lawyer may counsel or assist a client in a good faith effort to determine the validity, scope, meaning or application of the law.
 
The new iteration of RPC 1.2(d) contains the same language, but adds the following:

A lawyer may counsel a client regarding New Jersey’s medical marijuana laws and assist the client to engage in conduct that the lawyer reasonably believes is authorized by those laws. The lawyer shall also advise the client regarding related federal law and policy.
 
The amendment, which goes into effect today (September 1, 2016), resolves a critical dilemma faced by lawyers counseling grower-dispensaries, physicians and healthcare providers, patients, or other clients about medical marijuana since the New Jersey Compassionate Use Medical Marijuana Act, N.J.S.A. 24:6I-1 et seq., was signed into law in 2010. That dilemma, of course, is that the client’s activities, while permissible under New Jersey law, still contravene federal law—although the U.S. Department of Justice is powerless to prosecute state-compliant medical cannabis businesses under congressional budget language signed by the President in 2015 and 2016, reaffirmed two weeks ago by the Ninth Circuit in United States v. McIntosh. The Supreme Court’s decision to amend the attorney ethics rules is especially welcome after the federal Drug Enforcement Administration issued a statement this summer that it would not reschedule cannabis, which remains a Schedule I drug (alongside heroin and LSD) under the Controlled Substances Act.

The Supreme Court’s decision was preceded by the Advisory Committee on Professional Ethics’ unanimous recommendation that RPC 1.2(d) be amended to expressly permit attorneys to counsel clients regarding NJ medical marijuana laws, so long as they also advise the clients about related federal law and policy. The Advisory Committee also agreed that, due to the uncertainty as to the ethics of such legal work, attorneys should not face discipline for violating RPC 1.2(d) while the Supreme Court considered the proposed amendment. However, the Advisory Committee was sharply divided over whether attorneys counseling clients with respect to medical marijuana were running afoul of the pre-amendment iteration of RPC 1.2(d), although it found, by a narrow majority, that such attorneys were not violating their ethical obligations.

The impact of this amendment cannot be overlooked. As counsel to New Jersey’s largest medical cannabis grower-dispensary, a Woodbridge-based nonprofit corporation, and having advised my client regarding both the State’s medical marijuana statute and regulations and related federal laws, I firmly believe that public policy concerns militate in favor of allowing participants (or would-be participants) in the industry to have the benefit of legal advice. The complexities in the industry require compliance with sometimes ambiguous or conflicting regulatory provisions, the application of zoning and land use laws in siting medical marijuana operations, corporate counseling, labor and employment counseling, tax advice, and the resolution of thorny intellectual property issues with a federally illegal drug, among other practice areas. Disallowing lawyers to advise these clients or physicians and healthcare providers seeking to enroll patients into the State’s medical marijuana registry could have had a potentially devastating effect on a program that critics already decry as too strict to benefit New Jersey patients.

By expressly authorizing attorneys to counsel clients in complying with a strict statutory and regulatory rubric, the Supreme Court has enabled the realization of the goals set by the political branches in enacting the New Jersey Compassionate Use Medical Marijuana Act. The Court’s decision also has acted to further the provision of palliative relief to New Jersey patients suffering from cancer, HIV/AIDS, epilepsy, neurological conditions, terminal illness, and other serious debilitating medical conditions.