CSG Law Alert: ABC NY Affirms Prior Opinion Allowing Lawyers to Opine on Medical Marijuana Law

States have struggled with advising lawyers admitted to their bars as to whether and to what extent they can advise their clients on cannabis-related issues knowing that federal law still forbids the possession, distribution, sale, or use of marijuana. The concern is that under the Rule of Professional Conduct 1.2(d) “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent except that the lawyer may discuss the legal consequences of any proposed course of contact with a client.”  In July 2014, New York adopted the Compassionate Care Act (“CCA”), which permitted cultivation, distribution, prescription and use of marijuana for medical purposes.  Months later, in September, the New York State Bar Association Committee on Professional Ethics, issued Opinion 1024 concluding that because the federal government was not enforcing the law, a lawyer may advise clients in complying with state medical marijuana law (although the opinion noted that “[i]f federal enforcement were to change materially, this opinion might need to be reconsidered.”

This past November, the Bar did just that and reaffirmed its earlier conclusion that “the Rules permit lawyers to give legal assistance regarding the CCA that goes beyond a mere discussion of the legality of the client’s proposed conduct.”

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