May a California lawyer advise and assist a client in operating a cannabis business that is lawful under California law but unlawful under federal law?
State Bar of California COPRAC Formal Opinion 2020-202: Advising Cannabis Clients
Short answer: The opinion concludes that under the California Rules of Professional Conduct, a California-licensed lawyer may advise and assist a client in conduct that is permitted by California cannabis laws even when that conduct may violate federal law, provided the lawyer informs the client of the conflict between state and federal law (including the federal criminal exposure), does not counsel or assist any violation of federal law in a manner designed to avoid detection or prosecution, and complies with Rule 1.2.1 and the other identified rules.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.
Plain-English summary
The opinion analyzes whether a California lawyer who advises and assists a client in operating a California cannabis business is subject to professional discipline given that the client's conduct, while lawful under California's MAUCRSA and related statutes, may violate the federal Controlled Substances Act. The committee identifies four ethical provisions as controlling: Rule 1.2.1 (advising or assisting a violation of law), Rule 8.4(b) (criminal act reflecting on honesty or fitness), Business and Professions Code section 6068(a) (duty to support state and federal law), and Business and Professions Code section 6106 (moral turpitude). The opinion is limited to California lawyers advising on conduct in California; it does not address federal criminal law itself, the likelihood of federal prosecution, the effect of a federal conviction in a State Bar proceeding, or self-reporting duties.
Per the opinion, Rule 1.2.1 (effective November 1, 2018) and its Comment [6] are the most authoritative California provisions on point. The committee anchors its analysis in the rule's text, which prohibits a lawyer from counseling or assisting a client in conduct the lawyer knows to be criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal, while permitting a lawyer to discuss the legal consequences of any proposed course of conduct and to counsel or assist a client in a good-faith effort to determine the validity, scope, meaning, or application of any law. The committee builds on Bar Association of San Francisco Op. 2015-1 and LACBA Formal Op. 527 (2015), both of which reached compatible conclusions before Rule 1.2.1 was adopted.
Per the opinion, the lawyer may provide compliance advice, business formation, tax advice, employment advice, supply-chain contracts, real estate, and other legal services that facilitate the client's operation of a business lawful under California law. Per the opinion, the lawyer may not advise the client to violate federal law and may not provide advice or assistance that is designed to evade detection or prosecution of any violation of state or federal law. The committee also concludes that under Rule 1.4 and 1.4.1 the lawyer must inform the client of the state-federal conflict, the potential criminal liability and penalties under federal law, and the potential collateral impacts (including effects on attorney-client privilege).
On the specific arrangements presented in the statement of facts, the opinion addresses: (i) holding excess client funds in trust as a "rainy day" fund against federal seizure, (ii) assisting the client in establishing offshore bank accounts to receive business proceeds, and (iii) accepting compensation by acquiring an interest in the client's business in lieu of fees. The committee reads Rule 1.2.1 and Rule 1.15 to limit these arrangements when they are structured to evade federal detection or to circumvent federal forfeiture, and reads Rule 1.8.1 considerations into any arrangement that gives the lawyer a pecuniary interest in the client's business.
In practice
Under this opinion, conduct that consists of providing advice and legal services to a California cannabis business is consistent with the California Rules of Professional Conduct as they stood at the time of the opinion provided the lawyer (i) informs the client of the conflict between state and federal law, including federal criminal exposure and the risk to attorney-client privilege; (ii) does not counsel or assist the client to violate federal law, and does not provide advice or assistance designed to evade detection or prosecution of any state or federal violation; (iii) limits trust-account holdings, banking arrangements, or fee arrangements that would otherwise be permissible to those not structured to circumvent federal seizure or detection; and (iv) maintains competence under Rule 1.1 in the relevant California regulatory framework.
The committee declines to opine on questions of federal criminal law, the likelihood of federal prosecution, the effect of any federal conviction in a State Bar disciplinary proceeding, or the lawyer's self-reporting obligations.
Common questions
Q: Is a California lawyer subject to discipline for providing routine business advice to a state-licensed cannabis operator?
A: Per the opinion, not solely because the conduct violates federal law. Rule 1.2.1 and Comment [6] permit a lawyer to counsel and assist a client in conduct that is lawful under California law, including business formation, tax, employment, supply-chain, real estate, and other operational matters tied to that conduct, so long as the lawyer informs the client of the federal conflict and does not counsel or assist evasion of federal law.
Q: Must the lawyer explain the federal-law conflict?
A: Yes. Per the opinion, Rule 1.4 requires the lawyer to inform the client of the conflict between state and federal law, the potential criminal liability and penalties under federal law, and the potential impacts on the lawyer-client relationship, including the effect on the attorney-client privilege.
Q: May the lawyer hold "rainy day" funds in trust to protect the client against federal seizure?
A: Per the opinion, no, where the arrangement is structured to evade federal forfeiture. Rule 1.15 and Rule 1.2.1 limit the lawyer's ability to use the client trust account as a shelter against federal enforcement. The committee treats the question as part of the limitation on assisting evasion of detection or prosecution.
Q: May the lawyer help the client open an offshore bank account for cannabis proceeds?
A: Per the opinion, no. The committee characterizes this arrangement as one designed to evade federal law and federal enforcement, which Rule 1.2.1 prohibits. The opinion also notes federal money-laundering exposure under 18 U.S.C. sections 1956-57.
Q: May the lawyer take an equity interest in the cannabis business in lieu of fees?
A: Per the opinion, a fee arrangement in which the lawyer acquires an interest in the client's business is a business transaction with the client implicating Rule 1.8.1, with the additional concern that any such interest may be subject to federal forfeiture. The lawyer must comply with Rule 1.8.1's written-disclosure, advice-to-seek-independent-counsel, and informed-written-consent requirements.
Q: Does the opinion apply to a California lawyer advising on cannabis conduct in another state?
A: No. The committee expressly limits the opinion to California lawyers counseling or assisting with respect to conduct occurring in California. The opinion does not address cross-jurisdictional advice.
Background and rules framework
The opinion interprets California Rule 1.1 (competence), Rule 1.2.1 (advising or assisting a violation of law, effective November 1, 2018), Rule 1.4 (communication), Rule 1.4.1 (relevant limitation disclosure), Rule 1.6 (confidentiality), Rule 1.7 (conflicts), Rule 1.13 (organization as client), Rule 1.15 (safekeeping client property), Rule 4.1 (truthfulness in statements to others), and Rule 8.4 (misconduct, including 8.4(b)), together with Business and Professions Code sections 6068, 6068(a), 6101, 6102, 6103, 6106, and Evidence Code section 956 (crime-fraud exception to attorney-client privilege). The committee anchors its substantive analysis in Gonzales v. Raich (2005) 545 U.S. 1, United States v. Oakland Cannabis Buyers' Cooperative (2001) 532 U.S. 483, City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, Qualified Patients Ass'n v. City of Anaheim (2010) 187 Cal.App.4th 734, County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, and United States v. McIntosh (9th Cir. 2016) 833 F.3d 1163. The opinion also discusses the Cole Memorandum (Aug. 29, 2013), its rescission (Jan. 4, 2018), and the Rohrabacher-Farr amendment (renewed through February 2019).
Citations and references
Rules of Professional Conduct:
- California Rules 1.1, 1.2.1 (and Comment [6]), 1.4, 1.4.1, 1.6, 1.7, 1.8.1, 1.13, 1.15, 4.1, 8.4 (including 8.4(b))
Statutes and regulations:
- California Business and Professions Code sections 6068, 6068(a), 6101, 6102, 6103, 6106
- California Evidence Code section 956 (crime-fraud exception)
- California Health and Safety Code sections 11357-61, 11362.5, 11362.7-.83, 11469-95
- California Business and Professions Code section 26032(a)
- California Code of Regulations: tit. 3, sec. 8000 et seq.; tit. 16, sec. 5000 et seq.; tit. 17, sec. 40100 et seq.
- 21 U.S.C. sections 812, 841, 844, 960 (Controlled Substances Act)
- 18 U.S.C. sections 2(a), 371, 846, 981, 983, 1956-57
Cases:
- Gonzales v. Raich, 545 U.S. 1, 29 [125 S.Ct. 2195] (U.S. 2005), Commerce Clause power over intrastate cannabis
- United States v. Oakland Cannabis Buyers' Cooperative, 532 U.S. 483 [121 S.Ct. 1711] (U.S. 2001), no medical-necessity defense to CSA
- City of Garden Grove v. Superior Court, 157 Cal.App.4th 355 [68 Cal.Rptr.3d 656] (Cal. Ct. App. 2007), no preemption of state cannabis exemption
- Qualified Patients Ass'n v. City of Anaheim, 187 Cal.App.4th 734 [115 Cal.Rptr.3d 89] (Cal. Ct. App. 2010), no field or obstacle preemption
- County of San Diego v. San Diego NORML, 165 Cal.App.4th 798 [81 Cal.Rptr.3d 461] (Cal. Ct. App. 2008), anti-commandeering
- United States v. McIntosh, 833 F.3d 1163, 1177 (9th Cir. 2016), Rohrabacher-Farr scope
Other opinions cited:
- Bar Association of San Francisco Op. 2015-1: cannabis representation pre-Rule 1.2.1
- LACBA Formal Op. 527 (2015): cannabis representation pre-Rule 1.2.1
- U.S. Dep't of Justice, Cole Memorandum (Aug. 29, 2013): enforcement priorities
- U.S. Dep't of Justice, Sessions Memorandum (Jan. 4, 2018): rescission of prior guidance
See also
- CA COPRAC Op. 2020-203: Data Breaches and Client Notice
- CA COPRAC Op. 2020-204: Third-Party Litigation Funding
- CA COPRAC Op. 2020-201: Departing-Lawyer Duties
Source
- Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
- Original PDF: https://www.calbar.ca.gov/sites/default/files/portals/0/documents/ethics/Opinions/Formal-Opinion-2020-202-17-0001.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 2020-202
ISSUES: May a lawyer provide advice and assistance to a client with respect to
conduct permitted by California's cannabis laws, despite the fact that the
client's conduct, although lawful under California law, might violate
federal law?
DIGEST: Under the Rules of Professional Conduct, a lawyer may ethically advise a
client concerning compliance with California's cannabis laws and may
assist the client in conduct permitted by those laws, despite the fact that
the client's conduct may violate federal law. Such advice and assistance
may include the provision of legal services to the client that facilitate the
operation of a business that is lawful under California law (e.g.,
incorporation of a business, tax advice, employment advice, contractual
arrangements, and other actions necessary to the lawful operation of the
business under California law). However, a lawyer may not advise a client
to violate federal law or provide advice or assistance in violating state or
federal law in a way that avoids detection or prosecution of such
violations. The lawyer must also inform the client of the conflict between
state and federal law, including the potential for criminal liability and the
penalties that could be associated with a violation of federal law. Where
appropriate, the lawyer must also advise the client of other potential
impacts on the lawyer-client relationship, including on the attorney-client
privilege, that could result from the fact that the client’s conduct may be
prohibited under federal law.
AUTHORITIES
INTERPRETED: Rules 1.1, 1.2.1, 1.4, 1.4.2, 1.6, 1.7, 1.13, 1.15, 4.1 and 8.4 of the Rules of
Professional Conduct of the State Bar of California.1
Business and Professions Code sections 6068, 6101, 6102, 6103, and
6106.
Evidence Code section 956.
California has recently adopted a comprehensive and complex regulatory scheme covering the
use, production, and sale of cannabis2 for both medicinal and adult recreational use. Many local
1
Unless otherwise indicated, all references to “rules” in this opinion will be to the Rules of Professional Conduct of
the State Bar of California.
1
California communities also regulate cannabis businesses. At the same time, possession,
commercial production, distribution, and sale of cannabis remain unlawful under federal law,
and violators are potentially subject to criminal penalties and civil forfeitures. Those wishing to
engage in a cannabis business based in California need compliance advice with respect to both
state and federal law and assistance in establishing and operating a business that complies with
state law. Lawyers wishing to provide such services are understandably concerned that
counseling or assisting conduct that may violate federal criminal law will subject them to
discipline for professional misconduct. Relying in significant part on recent changes to the
California Rules of Professional Conduct, this opinion aims to address those concerns.
SCOPE OF THE OPINION
The conflict between state and federal law that gives rise to the need for this opinion presents
difficult questions concerning the relationship between those two bodies of law. This opinion,
however, is limited to the issue of a lawyer’s obligations—and susceptibility to professional
discipline—under the California Rules of Professional Conduct and the State Bar Act when
providing advice and assistance with respect to conduct regulated under both state and federal
law. Because this opinion is based on California law and policy, its conclusions are limited to
California lawyers counseling or assisting with respect to conduct occurring in California. This
opinion does not address: (1) any issues of federal criminal law, except as assumed background
for its ethical analysis; (2) the likelihood of criminal or civil proceedings stemming from alleged
violations of federal criminal law; (3) the effect of a federal criminal conviction of a lawyer in a
subsequent State Bar disciplinary proceeding against the lawyer; or (4) the lawyer’s obligation
to self-report criminal proceedings or convictions to the State Bar. See Business and Professions
Code sections 6101, 6102, and 6068 (o)(4)-(5). Finally, as noted below, this Committee’s
opinions are not binding on entities charged with the discipline of California lawyers; a fortiori
they are not binding on federal law enforcement authorities.
STATEMENT OF FACTS
A lawyer has been asked to advise and assist a client who plans to conduct a business engaged
in growing, distribution and/or the sale of cannabis within the State of California. The client
seeks advice and assistance that will enable the client to comply with California laws, which
permit, regulate and tax such activities, including obtaining any required permits and dealing
with state and local regulatory authorities. The client would also like advice and assistance with
respect to related business activities, including business formation, financing, supply chain
contracts, real estate, employment law, and taxation.
2
The terms marijuana and cannabis are, for all purposes relevant to this opinion, legally and functionally
equivalent. In this opinion we generally use the term cannabis because that is the term used in recent California
legislation on the subject and, increasingly, by businesses in the field and lawyers who represent those businesses.
In few instances, we use the term marijuana where it appears more appropriate in context. No difference in
meaning is intended by the use of either term.
2
In addition, the lawyer and the client have been discussing several aspects of the proposed
representation, including the possibility that the lawyer will: (1) hold client funds in excess of
any amount required to cover legal fees in the lawyer’s client trust account, as a “rainy day”
fund, against the possibility that federal authorities might seize the client’s assets; (2) assist the
client in establishing offshore bank accounts into which the proceeds of the business may be
placed; and (3) be compensated for the provision of legal services by acquiring an interest in
the client’s business in lieu of fees.
DISCUSSION
A. Legal Background
As now well known, federal law and California law differ in their approach to the cultivation,
possession, distribution and sale of cannabis. Under the federal Controlled Substance Act (CSA),
it is illegal to manufacture, distribute or dispense a controlled substance, including cannabis, or
to possess a controlled substance with intent to do any of those things. (21 U.S.C. § 841(a)(1);
21 U.S.C. § 812, Schedules I(c)(10) and (d)). Depending on the quantities involved and other
factors, penalties for violating those laws can range from five years to life imprisonment.
(21 U.S.C. §§ 841(b)(1)(A)-(B), 960(b).) A person who “aids, abets, counsels, commands, induces
or procures” the commission of a federal offense or who conspires in its commission is
punishable as a principal to the offense. (18 U.S.C. § 2(a); 18 U.S.C. § 371; 18 USC § 846.) It is
also illegal under federal law to possess cannabis even for personal medicinal use. Id. §§ 812,
844(a). In certain circumstances, persons taking proceeds from a cannabis business may also be
charged under federal money laundering statutes. (18 U.S.C §§ 1956-57.)
In addition to criminal prosecution, persons engaged in the production, distribution or sale of
cannabis in violation of federal law are subject to forfeiture of both the assets used in operating
that business and the proceeds traceable to its operation. (18 U.S.C. §§ 981, 983.) Such assets
could include bank accounts, investor profits, including those already paid out to investors, land
and buildings.
Notwithstanding this federal prohibition, thirty-three states and the District of Columbia have
taken steps to legalize cannabis.3 Thirty states and the District of Columbia have legalized
cannabis for medical use. Eleven states and the District of Columbia have legalized cannabis for
adult recreational use. California has legalized both medical and adult recreational use. The
California approach to medical cannabis was originally codified in the Compassionate Use Act of
1996 (CUA), Health and Safety Code section 11362.5, as supplemented by the Medical
Marijuana Program Act (MMPA), addressing the prescription, possession and use of cannabis
for medicinal purposes. That statute has now been greatly expanded and, in significant part,
replaced by the Medicinal and Adult-Use Cannabis Regulation and Safety Act of 2017
(MAUCRSA), which comprehensively regulates cultivation, transport, distribution and sale of
3
See National Conference of State Legislatures, Marijuana Overview [http://www.ncsl.org/research/civil-and-
criminal-justice/marijuana-overview.aspx (last accessed: July 15, 2019)].
3
cannabis for both medicinal and adult recreational use. This statutory framework has in turn
given rise to an extensive scheme of regulations promulgated by the Bureau of Cannabis
Control (Cal. Code Regs., tit. 16, § 5000 et seq.), the California Department of Public Health (Cal.
Code Regs., tit. 17, § 40100 et seq.), and the California Department of Food and Agriculture
(Cal. Code Regs., tit. 3, § 8000 et seq.). Possession, prescription, use, cultivation, transportation,
distribution, testing and sale of cannabis in compliance with the CUA, MMPA, and MAUCRSA is
not subject to criminal punishment or assets seizure under state law. (Health & Safety Code,
§§ 11362.5(c), 11362.5(d), 11362.7-.83; Bus. & Prof. Code, § 26032(a).) However, conduct
falling outside those boundaries remains subject to criminal prosecution and civil forfeiture
under state law. (Health & Saf. Code, §§ 11357-61, 11469-95.)
Because California law permits and regulates conduct that is criminal under federal law, there is
a conflict between federal and state law regulating cannabis. There is authority that regulation
of intrastate cultivation, possession, use, and commercialization of cannabis is a lawful exercise
of Congressional power to regulate interstate commerce. (Gonzales v. Raich (2005) 545 U.S. 1,
29 [125 S.Ct. 2195].) It is also clear that federal law will not recognize a defense of medical
necessity to a prosecution under the CSA, where a necessity defense for marijuana is not
provided by statute, even in a state which has legalized and regulated medical cannabis. (United
States v. Oakland Cannabis Buyers’ Cooperative (2001) 532 U.S. 483 [121 S.Ct. 1711].)
Accordingly, California courts construing the CUA and MMPA have concluded that the
permissions and exemptions granted by those statutes under California law have “no impact on
the legality of medical marijuana under federal law.” (City of Garden Grove v. Superior Court
(2007) 157 Cal.App.4th 355, 385 [68 Cal.Rptr.3d 656]; see also, Qualified Patients Ass’n v. City of
Anaheim (2010) 187 Cal.App.4th 734 [115 Cal.Rptr.3d 89].) At the same time, California
cannabis laws are not preempted by federal law. There is no express or field preemption
relating to cannabis. (Id. at pp. 756-58.) Moreover, because California has chosen to legalize
complying cannabis related activities by suspending state criminal law enforcement, rather than
by requiring conduct unlawful under federal law, there is no direct conflict preemption. (City of
Garden Grove v. Superior Court, supra, at p. 385; Qualified Patients Assn v. City of Anaheim,
supra, at pp. 758-59.) Nor is there obstacle preemption, since state agencies cannot be
compelled to enforce federal law under anti-commandeering principles and the ability of
federal authorities to enforce those laws is unimpaired by California law. (Id. at pp. 758-63;
County of San Diego v. San Diego NORML (2008) 165 Cal.App.4th 798, 826-827 [81 Cal.Rptr.3d
461].)
Although federal authorities have the power to enforce federal criminal law against persons
who are exempt from state prosecution because they are in compliance with state law, they
have used that power sparingly in recent years. In the so-called Cole Memorandum, the United
States Department of Justice advised that it did not intend to use federal resources to
prosecute under federal law, patients and their caregivers who were in “clear and unambiguous
compliance” with state medical marijuana laws, except in cases involving broader issues of
federal policy, such as sale to minors or money-laundering. (U.S. Department of Justice, Cole, J.,
Guidance Regarding Marijuana Enforcement [Memorandum], August 29, 2013.) More recently,
then Attorney General Sessions declared that, given limited resources, federal prosecutors
4
“should follow the well-established principles that govern all federal prosecutions” in deciding
which marijuana cases to prosecute, and rescinded prior Justice Department guidance with
respect to medical marijuana prosecutions as unnecessary. (U.S. Department of Justice,
Sessions, J., Marijuana Enforcement [Memorandum], January 4, 2018.) In 2014, Congress
passed the Rohrabacher-Farr amendment to an appropriations bill, which prohibited the Justice
Department from spending appropriated funds to prevent enumerated states, including
California, from implementing state laws that authorize the use, distribution, possession or
cultivation of medical marijuana. That amendment has been renewed repeatedly since then,
most recently in February 2019, and it has been interpreted as prohibiting federal prosecutors
from spending funds for the prosecution of individuals who engage in conduct permitted by
state medical marijuana laws and are in full compliance with those laws. (United States v.
McIntosh (9th Cir. 2016) 833 F.3d 1163, 1177.)
In summary, California has established an extensive and complex scheme of state and local
regulation of the production, distribution, and use of both medical and recreational cannabis.
Compliance with that scheme results in exemption from relevant state criminal penalties, while
non-compliance can lead to criminal and civil sanctions under state law. Much of the conduct
permitted under California’s regulatory scheme is subject to prosecution as a federal felony or
misdemeanor; under the federal scheme, compliance with state law may sometimes provide a
defense in medical cannabis cases, but is unlikely to do so in cases involving recreational use.
Indeed, a lawyer’s counseling or assisting such conduct may itself be a federal crime. Because
federal prosecutorial policy for cannabis offenses is subject to change, and because the statute
of limitations for such offenses can be five to ten years, depending on the violation, it is
possible that California lawyers who assist clients in complying with California cannabis laws
may in the future be criminally prosecuted and convicted under federal law, and, thus, become
subject to subsequent state law discipline based upon such a conviction.
B. Counseling and Assisting with Respect to California and Federal Cannabis Law
Four provisions bear directly on the question of whether California-licensed lawyers are subject
to discipline for providing advice or assistance with respect to state and federal cannabis law:
rule 1.2.1 (Advising or Assisting the Violation of Law); rule 8.4(b) (commission of a criminal act
reflecting adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other
respects); Business and Professions Code section 6068(a) (it is the duty of an attorney to
support the Constitution and laws of the United States and of this state); and Business and
Professions Code section 6106 (Moral Turpitude, Dishonesty or Corruption). Because rule 1.2.1,
which became effective November 1, 2018, after approval by the California Supreme Court, is
the most recent, complete, and authoritative statement of California’s approach to this
question, we analyze it first, and then discuss the remaining three provisions in light of that
analysis. Our discussion builds on two important local bar association ethics opinions dealing
with this topic: Bar Association of San Francisco Ethics Opinion No. 2015-1 and Los Angeles
County Bar Association Formal Opinion No. 527 (2015). Although both opinions precede the
adoption of rule 1.2.1, their analysis informs and reinforces this opinion.
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1. Counseling and Assisting Under Rule 1.2.1 and Comment [6]
Rule 1.2.1 provides as follows:
(a) A lawyer shall not counsel a client to engage, or assist a client in conduct that
the lawyer knows* is criminal, fraudulent,* or a violation of any law, rule, or
ruling of a tribunal.*
(b) Notwithstanding paragraph (a), a lawyer may:
(1) discuss the legal consequences of any proposed course of conduct with a
client; and
(2) counsel or assist a client to make a good faith effort to determine the
validity, scope, meaning or application of a law, rule or ruling of a
tribunal.
The rule does not define the critical terms “counsel” or “assist.” Like other California ethics
committees that have addressed this issue, we adopt the definitions of those terms as stated in
the Restatement (Third) of the Law Governing Lawyers, section 94 (2000). “Counseling” by a
lawyer is defined as “providing advice to the client about the legality of contemplated activities
with the intent of facilitating or encouraging the client's action.” (Rest.3d., Law Governing
Lawyers § 94, com. (a), para. 3.) The Restatement defines “assisting” a client as “providing, with
a similar intent, other professional services, such as preparing documents, drafting
correspondence, negotiating with a nonclient, or contacting a governmental agency.” Id.
Comment [6] to rule 1.2.1 provides specific guidance for situations involving conflicts between
state and federal law. It states in full:
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, the 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 tribal or federal law and policy and under certain circumstances may also
be required to provide legal advice to the client regarding the conflict (see rules
1.1 and 1.4).
Permitted Advice. Under rule 1.2.1 and Comment [6], a lawyer may provide advice concerning
the validity, scope and meaning of California state and local laws, including, but not limited to,
laws permitting and regulating the production, distribution and sale of cannabis, even if the
client’s contemplated course of conduct violates federal law, so long as the lawyer believes that
the client is engaged in a good faith effort to comply with California law. That permission is
express in Comment [6], which generally applies to any conflict between California and federal
law. It is also supported textually by rule 1.2.1(b). Rule 1.2.1(b)(1) permits discussing the
6
consequences “of any proposed course of conduct,” including courses of conduct that the
lawyer knows are criminal or fraudulent. Rule 1.2.1(b)(2) permits a lawyer to counsel or assist a
client to “make a good faith effort to determine the validity, scope, meaning, or application of a
law, rule or ruling of a tribunal.” These provisions collectively support the conclusion that “a
lawyer is not advising a client to violate federal law when the lawyer advises the client on how
not to violate state law.” (Los Angeles County Bar Assn. Formal Opn. No. 527, at p. 9.)
At the same time, Comment [6] requires that any advice the lawyer gives about California law
must be accompanied by information about any conflict with related federal law and policy.
The Comment does not specify the level of detail that the lawyer must provide, but given the
current conflict between California and federal law related to cannabis, the lawyer’s ethical
obligations both to the client and to respect federal law require that the lawyer explain clearly
that the client’s contemplated conduct violates federal criminal law, the penalties for such a
violation, and any related risks of civil forfeiture. Often, as Comment [6] suggests, the lawyer’s
duties of competence or communication may require more detailed advice, a subject that we
discuss further below.
In addition, the lawyer’s right to advise concerning compliance with California law does not
extend to advice about how to avoid detection of, or to conceal, a violation of California or
federal law. This conclusion is reinforced by Comment [1] to the rule 1.2.1, which notes, “there
is a critical distinction between presenting an analysis of legal aspects of questionable conduct
and recommending the means by which a crime or fraud might be committed with impunity.”
See also, Los Angeles County Bar Assn. Formal Opn. No. 527 at page 12 (“advice and assistance
directed to violating federal law is not permitted”).
Permitted Assistance. Comment [6] explicitly states that in cases of conflict between California
and federal law, a lawyer may assist a client in “drafting or administering, or interpreting or
complying with, California laws . . . even if the client’s actions might violate the conflicting
federal or tribal law.” On its face, the language permitting assistance in “interpreting or
complying with” California laws plainly encompasses business lawyers’ assistance in conduct
that raises an actual or potential issue of interpretation or compliance with those state or local
laws that conflict with federal law. We believe that the inclusive term “California laws” is,
however, broader than that, encompassing assistance in interpreting or complying with all
California laws, whether or not they conflict with federal law. Thus, Comment [6] permits a
lawyer dealing with a conflict between state and federal law to assist in conduct calling for
interpretation of or compliance with any laws that are relevant to the client’s proposed actions,
including generally applicable laws relating to contracts, real property, employment, taxation,
and other subjects, even “if the client’s actions might violate . . . federal or tribal law.” Rule
1.2.1, Comment [6].
The drafting history of rule 1.2.1 also indicates that the fact the Comment itself ties permitted
assistance to “interpreting” or “complying” with the law is not intended to limit the forms of
professional assistance that a lawyer may provide. For example, one public comment submitted
during the drafting of rule 1.2.1 and Comment [6] expressed concern that the words
“interpreting” and “complying” did not make it sufficiently clear whether lawyers for cannabis
7
businesses were permitted to engage in negotiating and concluding sales agreements, real
estate purchases, acquisition of inventory and general corporate counseling.4 The Rule Revision
Commission’s (Commission) response was that those words “are sufficiently broad to
encompass each of the activities the commenter has identified as services that would typically
be provided.”5 In response to a similar public comment, the Commission stated that “assisting a
client in interpreting or complying with California laws includes doing so in connection with
drafting contracts, negotiating contracts, or other business activities.”6 In response to a third
public comment, the Commission stated that it did “not believe it is necessary to add
‘advocating,’ ‘negotiating,’ or ‘filing’ to the list of permitted lawyer assistance . . . [because] the
words ‘interpreting’ and ‘complying with’ are sufficiently broad to encompass” those activities.7
These comments and responses were included in the rule filing petition submitted to the
California Supreme Court when the rule was approved. This history supports the conclusion
that rule 1.2.1 and Comment [6] are intended to permit lawyers to render all the services that
lawyers customarily provide to business clients, including entity formation, applying for permits
or other regulatory approvals, negotiating and drafting in connection with all forms of business
transactions, and general business and regulatory counseling.
This reading of Comment [6] is also supported by considerations of policy. The case for
permitting assistance in interpreting or complying with California cannabis laws is strong: “if a
lawyer is permitted to advise a client on how to act in a manner that would not result in a
California crime, the lawyer should be able to assist a client in carrying out that advice so the
California crime does not occur.” (Los Angeles County Bar Assn. Formal Opn. No. 527, at p. 11
(emphasis in original).) Given the complexity and pervasiveness of the California regulatory
scheme, and the potential severe consequences of a violation of current federal law, it makes
sense to construe the client’s right to assistance to encompass every situation where such a
violation could occur. Furthermore, a rule that permits assistance in interpreting and complying
with California cannabis law (for example, helping to obtain a permit) but denies the same
service with respect to the full range of laws applicable to the formation and operation of that
business would hardly advance the California substantive policies in question. Finally, to the
extent that the concern is the degree of conflict between federal and state law, it would make
little sense to authorize assistance in interpreting or complying with California law that conflicts
with federal law, while denying such assistance with respect to California laws that raise no
issue of conflict.
The lawyer’s permission to assist is not, however, unlimited. It, too, is conditioned upon the
lawyer having provided information about the conflict between state and federal law in the
4
See the Board of Trustees of the State Bar of California, Regulation and Discipline Committee Agenda Item 54-121
from the July 19, 2018 meeting at Attachment 3 [Summary of Public Comments with Commission Responses], at
pp. 19-20 [Comment of Francis Mootz].
5
Id. at p. 20 [Response to Francis Mootz].
6
Id. at p.21 [Response to Jerome Sapiro].
7
Id. at pp. 23-24 [Response to Multiple Signatories [Bastidas]].
8
manner required by the rule. Moreover, the lawyer’s permission to assist, like the permission to
give advice, does not extend to assistance in evading detection or prosecution under state or
federal law. (Rule 1.2.1, Comment [1]; Los Angeles County Bar Assn. Formal Opn. No. 527, at
p. 12.)8 Limitations on the lawyer’s ability to provide assistance imposed by rule 1.2.1 may also
trigger obligations to communicate with the client under rule 1.4.9 Specifically, rule 1.4(a)(4)
provides that a lawyer, who knows that the client expects assistance not permitted by the Rules
of Professional Conduct or other law, must advise the client of the relevant limitations on the
lawyer’s conduct.
Other California Authorities. Our analysis of rule 1.2.1 is consistent with the policy
considerations previously identified in other California authorities on this issue. California
residents are entitled, as a matter of fairness, to understand “their rights, duties and liabilities”
under California law. (Bar Association of San Francisco Ethics Opinion No. 2015-1, at p. 3; Los
Angeles County Bar Assn. Formal Opn. No. 527.) These considerations are especially powerful
where, as here, the law involved is complex and criminal sanctions are associated with its
violation. Such advice also advances California public policy by increasing the likelihood that the
purposes of California’s comprehensive and complex regulatory scheme will be fulfilled. These
goals can be accommodated, consistent with respect for federal law, provided that lawyers also
provide meaningful information on conflicting federal law and policy and the sanctions for its
violation. (See Bar Association of San Francisco Ethics Opinion No. 2015-1, at p. 3; Los Angeles
County Bar Assn. Formal Opn. 527, at p. 13.) In the case of cannabis specifically, this balance of
8
None of these conclusions depend on the content of federal enforcement policy, which is not a factor discussed
in any of the relevant provisions. The fact that a federal law is not regularly or consistently enforced does not by
itself render the law a nullity or relieve those subject to the law of their obligation to comply. Moreover, because
the specifics of announced federal enforcement policies can and do transform with changing times and changing
administrations, they provide uncertain support for ethics policy making. That does not mean that federal
enforcement policy is irrelevant to the conclusions reached here. Most obviously, if federal enforcement policy
resulted in regular and successful prosecution of cannabis businesses conducted in compliance with state law, or
of their lawyers, there would, as a practical matter, be little or no interest in the questions explored here.
9
Rule 1.4 provides, in pertinent part that:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which disclosure or
the client’s informed consent is required by these rules or the State Bar Act;
(2) reasonably consult with the client about the means by which to accomplish the client’s
objectives in the representation;
(3) keep the client reasonably informed about significant developments relating to the
representation, including promptly complying with reasonable requests for information and
copies of significant documents when necessary to keep the client so informed; and
(4) advise the client about any relevant limitation on the lawyer’s conduct when the lawyer knows
that the client expects assistance not permitted by the Rules of Professional Conduct or other
law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make
informed decisions regarding the representation.
9
policy goals is strongly and independently reaffirmed by recent California legislation, signed by
the Governor, amending the crime-fraud exception to the California attorney-client privilege to
provide that the exception “shall not apply to legal services rendered in compliance with state
and local laws on medical cannabis or adult use cannabis, and confidential communications
provided for the purpose of rendering those services” remain privileged, provided that the
“lawyer also advises the client on conflicts with respect to federal law.” (Evid. Code, § 956(b).)
That legislation aligns all three branches of state government in support of the approach
outlined here.10
2. Counseling and Assisting Under Other Relevant Provisions of California Law
Several other rules and statutes can be read as bearing on the scope of permitted counseling
and assistance to a California cannabis business. Our construction of those provisions is
informed by our analysis of rule 1.2.1, because it represents the most recent, specific and
authoritative statement of California disciplinary policy on this issue. Our discussion assumes
that there has been no prior criminal prosecution or conviction for violation of federal law. See
Business and Professions Code sections 6101, 6102, and 6068 (o)(4) and (o)(5). As noted in
Section I of this opinion, the disciplinary consequences of a federal criminal prosecution or
conviction are outside the scope of this opinion.
Rule 8.4 (Misconduct) provides that it is “professional misconduct for a lawyer to: . . .
(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or
fitness as a lawyer in other respects.” The rule potentially applies because there could be
circumstances where a lawyer’s counseling or assistance in conduct permitted by California
cannabis law could be prosecuted as a criminal act under federal law. Our conclusion is that so
long as the lawyer’s conduct at issue complies with rule 1.2.1 and, in particular, with the
balance struck in that rule between promoting the objectives of state law and candid advice
and non-deceptive conduct concerning state and federal law, that conduct should not be
viewed for disciplinary purposes as “reflecting adversely on the lawyer’s honesty,
trustworthiness, or fitness as a lawyer in other respects.”
10
Similar approaches to the ethical issues of counseling and assisting conduct permitted by state laws have now
been adopted in virtually every jurisdiction that has legalized cannabis for medical or adult recreational use. In
some states, the conclusion is reflected in an opinion construing existing Rules of Professional Conduct (e.g.,
Arizona Ethics Opinion 11-01; Illinois Informal Opinion 14-07; New York State Bar Association Opinion 1024 (2014);
Washington Advisory Opinion 201501 (2015)), in some by new or amended Rules of Professional Conduct (e.g.,
Colorado Rules of Professional Conduct 1.2, Comment [14]; Nevada Rules of Professional Conduct 1.2, Comment
[1]), in some by statute (see, Minnesota Statutes § 152.32(2)(3)(i)), and in some by changes in prosecutorial policy
(see, e.g., Board Adopts Medical Marijuana Advice (Florida, June 15, 2014) [https://www.floridabar.org/the-
florida-bar-news/board-adopts-medical-marijuana-advice-policy/ (last accessed: March 27, 2020)]; Massachusetts
BBO/OBC Policy on Legal Advice on Marijuana (March 29, 2017) [https://www.massbbo.org/Announcements?id=
a0P36000009Yzb3EAC (last accessed: March 27, 2020)]. The statutes and rules in each of these states differ in their
details from those in California, but the similar approaches adopted reflect broadly shared judgments concerning
how best to balance the underlying policies.
10
Business and Professions Code section 6068(a) provides that it is the duty of an attorney “[t]o
support the Constitution and laws of the United States and of this state.” Obviously, counseling
or assisting in conduct that violates federal criminal law is potentially in significant tension with
a provision requiring support for both federal and state law. For the reasons elaborated above,
however, we conclude that conduct that complies with rule 1.2.1, in particular by making clear
to clients the force of federal law and the sanctions for its violation and by avoiding any
deception or concealment, sufficiently supports both California and federal law to comply with
this provision.
Finally, Business and Professions Code section 6106 states, in pertinent part, that “[t]he
commission of any act involving moral turpitude, dishonesty or corruption . . . constitutes a
cause for disbarment or suspension.” The California Supreme Court has stated under this
provision, “discipline may be imposed only for criminal conduct having a logical relationship to
an attorney’s fitness to practice” and that the term “moral turpitude must be defined
accordingly.” In re Lesansky (2001) 25 Cal.4th 11, 14 [104 Cal.Rptr.2d 409]. Counseling or
assistance that complies with rule 1.2.1 cannot properly be viewed as having the kind of “logical
relationship” to the attorney’s fitness to practice that would justify a finding of “moral
turpitude, dishonesty, or corruption” for purposes of discipline under California law.
3. Counseling and Assistance: Analysis of the Statement of Facts
Based on this background, we conclude that the lawyer in the Statement of Facts may,
consistent with the California Rules of Professional Conduct and the Business and Professions
Code, provide advice and assistance to any client whom the lawyer believes to be engaged in a
good faith effort to comply with state or local law regulating the medicinal or adult-recreational
use of cannabis. The lawyer may also provide such advice and assistance in interpreting any
other relevant California law, including generally applicable laws relating to entity formation,
contracting, real estate, employment and taxation. Accordingly, the lawyer may both advise
and assist the client in, among other things, obtaining regulatory approvals necessary to
conduct a cannabis business, drafting documents and negotiating transactions, and other steps
reasonably required to make that business functional and profitable in compliance with
California law.
The lawyer may not, however, provide advice or assist in conduct that enables the client to
evade detection or prosecution under California or federal law. The client’s request that the
lawyer permit the client to create a “rainy day fund,” and keep it in the lawyer’s trust account
to protect against the risk of a federal seizure of the client’s assets, falls into that category since
it seems principally intended to conceal those assets from federal law enforcement. Depending
on, among other things, the client’s intent, the client’s request for assistance in establishing
offshore bank accounts to receive the proceeds of the business may very well fall into the
forbidden category as well. If the lawyer knows that the client expects forbidden assistance, the
lawyer must advise the client of the limitations on the lawyer’s conduct imposed by the Rules of
Professional Conduct and the State Bar Act. Rule 1.4(a)(4).
11
Finally, the protections of rule 1.2.1 and Comment [6] do not extend to the client’s proposal to
compensate the lawyer for rendering legal services by giving the lawyer an interest in the
client’s business in lieu of fees. Simply put, those provisions cannot be read to authorize a
lawyer to acquire an interest in a cannabis business, or to participate on an ongoing basis in
such a business, if such acquisition or participation violates federal criminal law. As explained
above, the terms of rule 1.2.1 and Comment [6], read together, permit lawyers to “counsel” or
“assist” clients whose cannabis-related business activities may violate federal law. Both the text
of rule and the text of the Comment are concerned exclusively with the scope of prohibited and
permitted counseling and assistance. Neither says anything about whether a lawyer may invest
in or otherwise participate in such a business. While there is an argument that the California
regulatory and disciplinary policies reflected in rule 1.2.1 and Comment [6] would be advanced
by permitting lawyers to accept this form of compensation for legal services, the Rules
themselves do not enact that permission. Whether and under what circumstances a lawyer’s
acceptance of that form of compensation, in violation of federal law, would support discipline
under rule 8.4 and Business and Professions Code sections 6068(a) and 6106 is beyond the
scope of this opinion.
C. Additional Ethical Considerations
Competence. The duty of competence requires that the lawyer apply the “(i) learning and skill,
and (ii) mental, emotional, and physical ability reasonably necessary for the performance of
such service.” Rule 1.1(b). Competent representation of a regulated cannabis business requires
specialized learning: notably, mastering a novel, complex, and rapidly evolving body of state
and local statutes and regulations. In addition, the scope of competent representation will
always encompass providing basic information on conflicting federal law to comply with rule
1.2.1 and may often require additional advice going beyond such information. A lawyer who is
unable to acquire the full range of required learning and skill through study, or through
consulting or associating with another attorney, should limit the representation to those issues
that she has or can acquire the requisite learning and skill and advise the client to obtain
separate counsel with sufficient learning and skill to represent the client on other issues
presented. Rule 1.1.11
Confidentiality and Privilege. Traditionally, under California law, there is no attorney-client
privilege “if the services of the lawyer were sought or obtained to enable anyone to commit or
plan to commit a crime or a fraud.” Evidence Code section 956(a). As described above, the
Evidence Code has now been amended to clarify that this crime-fraud exception “shall not
apply to legal services rendered in compliance with state and local laws on medical cannabis or
adult use cannabis.” Additionally, “confidential communications provided for the purpose of
rendering those services” remain privileged “provided the lawyer also advises the client on
conflicts with respect to federal law.” (Evid. Code, § 956(b).)
11
Among the substantive law rights of the client that may be affected by conflicting federal law are the right to
enforce contracts (which may be subject to a federal defense of illegality) and the right to seek discharge in
bankruptcy.
12
Under this provision, a client whose lawyer has complied with rule 1.2.1 may be able to claim
the privilege in a state court proceeding. However, in a federal criminal or forfeiture
proceeding, the governing privilege law will be federal, and the federal, rather than the state,
crime-fraud exception to the privilege will apply. United States v. Zolin (1989) 491 U.S. 554 [109
S.Ct. 2619]. The trigger for that exception is that the lawyer’s advice was sought in furtherance
of a federal crime. Id. To the extent that conduct permitted under state law constitutes a
federal crime, there is a risk in a federal proceeding that the tribunal will rule that the attorney-
client privilege does not protect confidential communications between lawyer and client, and
compel discovery or testimony concerning such communications. In those circumstances, the
lawyer may face a conflict between her statutory duty of confidentiality under California law,
which contains no express exception for compliance with a court order (see rule 1.6 and Bus. &
Prof. Code, § 6068(e)), the lawyer’s statutory obligation to obey a court order (Bus. & Prof.
Code, § 6103, In the Matter of Collins (Review Dept. 2018) 2018 WL 1586275), and the lawyer’s
own interest in avoiding imprisonment or fines for contempt.
The potential unavailability of the attorney-client privilege under federal law and its
consequences should be disclosed to the client at the outset of the representation, because it is
information that is “reasonably necessary to permit the client to make informed decisions
regarding the representation.” Rule 1.4(b).
Conflict of Interest. Under rule 1.7(b), a lawyer is required to obtain the client’s informed
written consent whenever there is a significant risk that the lawyer’s representation of the
client, including the lawyer’s ability to comply with the duties of competence, confidentiality,
and loyalty, will be materially limited by the lawyer’s own interests. In addition, rule 1.7(d)
requires that the lawyer reasonably believe that, notwithstanding the risk of conflict, the lawyer
will be able to provide competent and diligent representation to the client.
Whether the risk of a future conflict is significant depends on both the severity of the conflict
and the likelihood that it will arise. Rule 1.7, Comment [4]. A federal criminal investigation or
action, targeting either the lawyer or the client, could give rise to a severe and consequential
conflict between the lawyer and client, not least because in such matters pressure may be
brought against the client and the lawyer to testify against each other and the attorney-client
privilege may not be available. Moreover, though federal investigations and prosecutions of
state-licensed cannabis businesses or their lawyers may not currently be routine, they have
occurred, and current Justice Department policy is that cannabis-related enforcement is
governed by “the well-established principles that govern all federal prosecutions.”12 Given
those facts, the risk of conflict stemming from the threat of federal investigations and
enforcement under current law cannot reasonably be viewed as insignificant. Accordingly, the
lawyer must consider whether the representation can be undertaken, consistent with rule
1.7(d), notwithstanding the significant risk of a future conflict. If the lawyer concludes that rule
1.7(d) is satisfied, the lawyer must inform the client of the potential for such conflict pursuant
to rule 1.4(a)(1) and rule 1.7(b), and seek the client’s informed written consent thereto.
12
U.S. Department of Justice, Sessions, J., Marijuana Enforcement [Memorandum], January 4, 2018.
13
Liability Insurance and Banking. Rule 1.4.2(a) states that “a lawyer who knows or reasonably
should know that the lawyer does not have professional liability insurance” must inform the
client of that fact, in writing, at the time of the engagement. Some lawyers may have difficulty
obtaining malpractice insurance for a practice representing clients in cannabis law, or they may
discover that their insurance policy contains an express exclusion for criminal conduct. If a
lawyer is not able to obtain insurance coverage for the lawyer’s cannabis practice, the lawyer
must so inform the client pursuant to rule 1.4.2.
Lawyers may also find it difficult to find a bank that will allow them to establish a client trust
account for a practice which involves representing cannabis businesses or deposit funds from
those clients into an existing client trust account. If the client’s business needs would normally
call for the lawyer to provide safekeeping of the client’s funds or property under rule 1.15, and
the lawyer is unable to do so, the lawyer should inform the client pursuant to rule 1.4(a)(3). The
lawyer should also comply with any applicable provisions of rule 1.15.
Organizational Clients and Constituents. One important goal of California’s expanded
regulatory scheme is to draw former participants in the unregulated market into the regulated
market created by that scheme. Assuming that purpose is successful, it is likely that many new
participants will choose, perhaps for the first time, to conduct their business using an
organizational form. Lawyers for these organizations should be alert to the concept that the
client is the organization itself, rather than its constituents, and their obligation is to act in the
organization’s best lawful interests. Rule 1.13(a). In particular, they should take special care to
explain the identity of the client to organizational constituents whenever it is known or
reasonably knowable that the interests of the organization and the constituent are adverse.
Rule 1.13(f).
Truthfulness to Third Parties. Rule 4.1(b) forbids a lawyer from failing “to disclose a material
fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act
by the client,” unless disclosure is barred by the lawyer’s duty of confidentiality. The fact that a
business is engaged in commercial cannabis activity—as well as the nature and degree of that
engagement—is likely to be a material fact in many transactions between that business and a
third party, notably because it has a material impact on the financial, legal, and reputational
risks of dealing with the business. Moreover, depending on the circumstances, including the
expectations and situation of the third person, the client’s intentional failure to disclose such
facts may itself be a form of civil fraud. BAJI No. 1901 (2017). In addition, under rule 1.2.1, given
the present conflict between federal and state cannabis regulation, a lawyer may not assist in
conduct that is intended to conceal the client’s actions or evade prosecution for them. For all
these reasons, lawyers representing cannabis businesses should be alert to situations where
the lawyer’s duty of truthfulness may bar the lawyer from assisting the client in dealings with a
third party unless the material facts regarding the client’s business have been disclosed. In such
situations, if the client declines to permit disclosure, the lawyer must inform the client of the
relevant limitations on the lawyer’s conduct and should evaluate whether withdrawal from the
matter is permitted or required under rule 1.16. Rule 1.4(a)(4) and rule 4.1, Comment [5].
14
CONCLUSION
Under the California Rules of Professional Conduct, a California-licensed lawyer is permitted to
advise and assist a client in interpreting and complying with California law, including laws
permitting and regulating commerce in cannabis, even if the client’s conduct violates federal
law, provided that the lawyer informs the client of the conflict between state and federal law
and does not advise or assist the client in concealing or evading prosecution for that conduct.
The fact that the client’s conduct is unlawful under federal law may give rise to other
limitations on the lawyer’s representation of the client, which must be disclosed to the client
consistent with the lawyer’s duty to communicate information relevant to the representation.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of
the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of
California, its Board of Trustees, any persons, or tribunals charged with regulatory
responsibilities, or any licensee of the State Bar.
15