If you live or work in Pennsylvania you have, by now, no doubt heard about how our state legalized medical marijuana. If you haven’t, the key takeaway is that Governor Tom Wolf on April 17, 2016 signed SB 3 (The “Medical Marijuana Act”) into law, making Pennsylvania the 24th state (and only the second Commonwealth, after MA) to legalize medical marijuana. The ins and outs of what this means for our residents in need is still up in the air, and not the subject of this blog.
The subject of this blog is a concern raised by the intersection of this legislation and the inevitable economic opportunities medical marijuana is going to create in our state. The bill is long, about 70 pages, and the application process is going to require legal assistance. This is good for us lawyers, right? Well…maybe not. Can we even advise our clients interested in getting into the medical marijuana business?
The problem in Pennsylvania is that our Rules of Professional Conduct read as follow:
Crime or Fraud by Client
(3) Under Rule 1.2(d), a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent.
As you probably know, the federal government has not as of yet legalized marijuana in any form (it is still classified as a scary schedule one drug). So, because it is still criminalized on a federal level, and PA attorneys cannot advise on issues that we know to be criminal, the conclusion can be drawn that Pennsylvania would prohibit lawyers from counseling or assisting a client who was interested in the medical marijuana business.
However, there has been activity by the Pennsylvania Bar to address this issue, from as early as last summer the Disciplinary Board of PA was tasked with considering how to reconcile this issue, and it came up with a proposed amendment to Rule 1.2. PA Rules of Professional Conduct 1.2(e), if passed at the next Board meeting in July of 2016, states that:
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.
What this rule would do, effectively, is carve out an ethical exception to Rule 1.2(d) without actually negating the rule entirely and risk opening up the potential argument that a lawyer now has free reign to discuss and give advice on a plethora of illegal activities with their clients. Nobody wants that, obviously; however it is certainly not right to put PA lawyers in the Catch-22 of being presented with businesses that wish to use our services to do business in the State (and take advantage of what could be an amazing opportunity in the field of medical marijuana), and yet have it known in the background that by engaging in these conversations with our clients we are potentially violating our code of ethics and risk penalties as severe as potential disbarment.
As I mentioned before, it is likely this rule will go into effect in July of this year, if you have an opinion or a comment you wish to share, the Disciplinary Board is accepting them until June 3. As always, if you want to speak to an attorney about getting your business off the ground in Pennsylvania, don’t hesitate to contact the attorneys at Console Legal, LLC.