The legal landscape of medical and recreational marijuana remains fast-changing across the United States–cannabis remains illegal under federal law—and there are inconsistencies among various states’ legal ethics advice regarding whether lawyers may represent clients involved in the cannabis industry.
On June 21, 2021, the Supreme Court of Georgia denied a motion to amend Rule 1.2 of the Georgia Rules of Professional Conduct. The amendment would have permitted lawyers to assist clients regarding the Hope Act, HB 324, which allows patients to access medical cannabis oil in-state with no more than 5% THC.
More specifically, the Rule 1.2 amendment would have “allow[ed] lawyers provide necessary services and guidance to clients as they navigate complicated regulatory systems that the new law creates, without fear of disciplinary penalties.” The amendment went beyond the cannabis industry, saying “this amendment would give lawyers the ability to serve clients in other situations where the law of one jurisdiction defines certain conduct as criminal, but the law of another does not.”
Not so fast for Georgia lawyers. In denying the motion, the Supreme Court of Georgia cited to the federal illegality of cannabis as grounds, holding that “[t]he passage of a Georgia statute purporting to permit and regulate conduct that constitutes federal crimes does not change that long standing principle [of prohibiting Georgia lawyers from counseling and assisting clients in the commission of criminal acts].”
The order also touched on the amendment’s broad language, signaling apprehension toward the possibility that the amendment would apply to illegal conduct beyond that in the cannabis industry. South Dakota, Oklahoma, and Mississippi have taken a similar approach to what is permitted under Rule 1.2.
Other states have taken a decidedly more liberal approach. On July 8, 2021, after New York legalized recreational cannabis, the New York State Bar Association issued Ethics Opinion 1225, permitting lawyers to assist clients “in conduct designed to comply with New York’s Recreational Marijuana Law and its implementing regulations[.]” The opinion went beyond solely client representation, permitting lawyers to use recreational marijuana themselves, cultivate marijuana pending effectuation of the Recreational Marijuana Law, and accept equity ownership interest in cannabis business in exchange for legal services.
California, Colorado, Hawaii, Pennsylvania, Ohio, and Oregon are just some of the states whose guidance mirrors New York’s. Their stances are thematically in line with the ABA’s 2019 resolution urging Congress to amend the Controlled Substance Act to allow for cannabis use and research without criminal sanctions.
As Justice Clarence Thomas opined this past June, “the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana.” Until this uncertainty is addressed federally, lawyers should proceed with caution in their representation of cannabis clients.
See some of our prior coverage here, here, and here. And preview Jan’s Cannabis Conundrum CLE on Quimbee here.
