Advising Marijuana Business Clients: The Only Certainty Is Uncertainty

Over 30 states and territories now permit medical marijuana use, and a few states have even legalized its recreational use. (National Conference of State Legislatures (State Medical Marijuana Laws.) Accordingly, attorneys are being sought out to advise clients regarding the development of businesses focused on selling and/or dispensing cannabis. However, a deep chasm of uncertainty exists as to what an attorney may or may not do with respect to advising a potential client in this uncharted territory. This is because the question remains whether federal law trumps state law on the issue of how attorneys may advise clients in the cannabis business.

On May 19, 2016, the Advisory Committee on Professional Ethics in New Jersey issued an opinion proposing an amendment to New Jersey Rule of Professional Conduct 1.2(d) that would allow attorneys to advise clients who legally grow cannabis for medical purposes in New Jersey even though cannabis is still violative of federal law. If New Jersey can successfully clarify an attorney’s role in not only guiding, but also representing a cannabis business client, sanctioning an attorney should be difficult so long as the attorney is abiding by state law.