Assortment of cannabis products sold in California. Credit: Jason Doiy/ ALMLawyers Advising on State Cannabis Won't Break Bar Rule
Still, the revamped rule of professional conduct warns attorneys not to aid a client in breaking the law.
September 28, 2018 at 06:46 PM
4 minute read
California's Supreme Court has approved a new rule of professional conduct clarifying that attorneys may advise cannabis clients on complying with state laws, even those that conflict with a federal ban on marijuana.
Still, the revamped Rule 1.2.1 of the Rules of Professional Conduct warns attorneys not to aid a client in breaking the law, and it does not specifically mention marijuana. It does, however, in a section known as Paragraph (b), allow attorneys to “discuss the legal consequences of any proposed course of conduct.”
A comment to the rule, Comment 6, which was crafted over several months of discussion among the Supreme Court, the State Bar of California and lawyers, now says:
“Paragraph (b) permits a lawyer to advise a client regarding the validity, scope, and meaning of California laws that might conflict with federal or tribal law. In the event of such a conflict, a lawyer may assist a client in drafting or administering, or interpreting or complying with California laws, including statutes, regulations, orders, and other state or local provisions, even if the client's actions might violate the conflicting federal or tribal law. If California law conflicts with federal or tribal law, the lawyer must inform the client about related federal or tribal law and policy and under certain circumstances may also be required to provide legal advice to the client regarding the conflict.”
The state bar submitted the new rule language to the court in August after justices asked bar officials to clarify the meaning in Comment 6. The rule change, along with dozens of others approved by the court earlier this year, go into effect on Nov. 1.
The revisions are the first comprehensive amendments to the Rules of Professional Conduct in 29 years.
The state-federal conflict guidance received a mixed reception from cannabis lawyers when it was circulated for public comment this summer.
Joshua Mandell, an Akerman partner in Los Angeles, praised the clarification that an attorney can counsel a client on compliance with California law “without fear that in giving such an advice that attorney is engaged in unethical conduct.”
“This simple but important clarification will remove a barrier to entry and provide the comfort many attorneys currently lack but seek before agreeing to undertake the representation of clients in California's regulated cannabis industry,” Mandell wrote to the bar on July 3.
Other lawyers said the rule and comment language remained too vague. Nine attorneys, including leading members of the National Cannabis Bar Association, unsuccessfully pleaded with bar officials to add a specific safe harbor provision.
“The inclusion of one sentence could make clear to counselors across the state that they will not be targeted solely on the basis of their client list and will serve the state's newly legal cannabis industry well,” the lawyers wrote to the bar in July.
The new rule is posted in full below:
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