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PA Supreme Court Clarifies Rule Related to Lawyers Advising Clients Engaged in Medical Marijuana Industry

The Pennsylvania Supreme Court has adopted a change to its Rules of Professional Conduct governing attorneys to address questions of whether it is ethically permissible to provide legal advice and assistance to clients engaged in the medical marijuana industry.

The change adds a new paragraph (e) to Rule of Professional Conduct 1.2 specifically permitting a lawyer to counsel or assist a client regarding conduct expressly permitted by Pennsylvania law. At the same time, however, the rule also states that the lawyer has an obligation to counsel the client about the legal consequences of the client’s proposed course of conduct under other applicable laws.

The rule change arose out of numerous inquiries received by the Pennsylvania Bar Association’s Legal Ethics and Professional Responsibility Committee and the Philadelphia Bar Association’s Professional Guidance Committee. With the changing marijuana laws in the United States precipitating a growing need for legal assistance in this area, Pennsylvania lawyers were asking whether it was ethically permissible to provide legal advice and assistance to clients engaged in the marijuana industry. To date, more than 20 states, including Ohio, New York, New Jersey, Maryland and Delaware, and the District of Columbia have enacted laws relating to medical marijuana. Pennsylvania enacted the Medical Marijuana Act on April 17, 2016.

Notwithstanding the trend of many states toward some form of legalization of marijuana, marijuana remains illegal under federal law. The Controlled Substances Act provides that marijuana is a “Schedule 1” drug, thereby making it unlawful to “manufacture, distribute, dispense, or possess a controlled substance.”

The conflict between federal and state laws created an ethical dilemma for Pennsylvania lawyers because Pennsylvania RPC 1.2(d) states that “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent...”

Under the former rule, arguably, a Pennsylvania lawyer was prohibited from assisting a client in various activities such as drafting or negotiating contracts that may have related, directly or indirectly, to the purchase, distribution or sale of medical marijuana, even though such activities are now legal under state law.

The new rule will permit counsel to provide legal services to clients without being subject to discipline under court rules.

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