Disciplinary Board Proposes “Marijuana Amendment” to Rules of Professional Conduct

Submitted by New Jersey Drug Crime Lawyer, Jeffrey Hark.

The Disciplinary Board has published a notice of proposed rulemaking, seeking comments on a possible amendment to Rule 1.2 of the Rules of Professional Conduct, regarding scope of representation. According to the preface, the proposal responds to numerous inquiries received regarding advice to clients regarding the marijuana business.

Marijuana laws across the United States have been changing rapidly. To date, over 20 states and the District of Columbia have enacted laws relating to marijuana. Pennsylvania’s Medical Marijuana Act was signed into law on April 17, 2016.

The proposed amendment would modify Subsection (d) of Rule 1.2, which prohibits a lawyer to counsel or assist a client in criminal conduct. An exception would be established in a new Subsection (e), stating: “A lawyer may counsel or assist a client regarding conduct expressly permitted by the law of the state where it takes place or has its predominant effect, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client’s proposed course of conduct.”

The preface notes that the Federal Controlled Substances Act, 21 U.S.C. § 811 et. seq, still classifies marijuana as a Schedule I drug, and thus its manufacture, distribution, dispensing, or possession are still illegal under Federal law.  Under the current language of Rule 1.2(d), a Pennsylvania lawyer arguably is prohibited from assisting a client in various activities such as drafting or negotiating contracts that may relate to the purchase, distribution or sale of marijuana,  even where such activities may be legal under state law.