Can a lawyer advise and represent a medical marijuana business when the activity is legal under state law but a federal crime?

Plain-English summary

Illinois's Compassionate Use of Medical Cannabis Pilot Program Act (410 ILCS 130/5 et seq.) authorizes and regulates medical marijuana, but the federal Controlled Substances Act still makes manufacturing, distributing, or dispensing marijuana a crime. A 2013 Department of Justice memorandum (the Cole Memorandum) stated an intent not to interfere with state medical-marijuana regimes that are tightly regulated. The committee was asked whether an Illinois lawyer may advise and serve clients in this business, and whether a lawyer may advise municipalities on zoning for cultivation centers and dispensaries.

The opinion turns on Rule 1.2(d), which bars a lawyer from counseling or assisting a client in conduct the lawyer knows is criminal or fraudulent, but allows the lawyer to discuss the legal consequences of proposed conduct and to assist a client in a good-faith effort to determine the validity, scope, meaning, or application of the law. The committee splits the question. Purely advisory services fall squarely within the exception, because the rule expressly permits counseling on a proposed course of conduct and the application of the law; Comment [9] confirms a lawyer may give an honest opinion about likely consequences.

For services beyond advice, such as negotiating contracts and drafting documents, the committee acknowledges the lawyer would be assisting conduct that violates federal criminal law. But it concludes, drawing on Arizona Ethics Opinion 11-01 and the "rules of reason" framing of Preamble [14], that a lawyer may provide such ancillary services to a client making a good-faith effort to comply with the new state law. The committee stresses that the lawyer should emphasize the client's conformity with state law and regulations (the DOJ safe harbor depends on compliance with a strong state regulatory system), stay current on federal enforcement policy, and not advise a client on how to evade state regulation.

On the second question, the committee concludes that advising a municipality on cannabis zoning under 410 ILCS 130/140 raises no Rule 1.2(d) problem, because the government client would not be manufacturing, distributing, or dispensing marijuana and so would not be engaging in criminal conduct.

The committee notes the view is not universal (contrasting Arizona Opinion 11-01 with Connecticut Informal Opinion 2013-02) and that, contemporaneously with this opinion, the ISBA was recommending that the Illinois Supreme Court amend Rule 1.2(d) along the lines of Connecticut's amended rule to remove the uncertainty.

In practice

Under this opinion, an Illinois lawyer may provide both advisory and transactional services (such as registrations, operating agreements, leases, and supply contracts) to medical cannabis clients, on the view that Rule 1.2(d) permits assisting a client's good-faith effort to comply with the state law. The opinion holds the lawyer should stress the client's compliance with the state regulatory scheme, keep current on federal enforcement policy and any changes in the law, and not counsel evasion of state regulation. The opinion concludes that advising a municipality on cannabis zoning raises no Rule 1.2(d) issue because the municipality is not engaged in criminal conduct.

Common questions

Q: Can an Illinois lawyer represent a medical marijuana business given the federal ban?

A: Yes, in the committee's view. The opinion concludes Rule 1.2(d) permits advising the client and providing ancillary services as part of the client's good-faith effort to comply with the state cannabis law.

Q: Is there a difference between giving advice and drafting contracts for a cannabis client?

A: The opinion treats advice as squarely within Rule 1.2(d)'s exception, and treats transactional assistance as assisting federally criminal conduct that is nonetheless permitted because it helps the client comply in good faith with the state law.

Q: Can a lawyer advise a city on zoning for cannabis dispensaries?

A: Yes. The opinion concludes that a municipality regulating zoning under 410 ILCS 130/140 is not engaging in criminal conduct, so Rule 1.2(d) is not an impediment.

Q: Did the committee suggest changing the rule?

A: Yes. The opinion notes the ISBA was recommending that the Illinois Supreme Court amend Rule 1.2(d), like Connecticut's amendment, to address conduct expressly permitted by state law.

Background and rules framework

The opinion interprets Illinois Rule of Professional Conduct 1.2(d) (scope of representation; Model Rule 1.2(d)), read against the Compassionate Use of Medical Cannabis Pilot Program Act (410 ILCS 130) and the federal Controlled Substances Act (21 U.S.C. 841, 846). The 2013 DOJ Cole Memorandum and Comment [9] and Preamble [14] of the Illinois Rules frame the analysis.

Citations and references

Rules of Professional Conduct:

• Illinois RPC 1.2(d) (Model Rule 1.2(d)): scope of representation; advising on the validity and application of law

Statutes:

• Compassionate Use of Medical Cannabis Pilot Program Act, 410 ILCS 130/5 et seq.; 410 ILCS 130/140 (local zoning)
• Controlled Substances Act, 21 U.S.C. 841(a)(1), 846

Other opinions cited:

• Arizona Ethics Opinion 11-01 (2011): legal services to state-licensed marijuana businesses
• Connecticut Bar Association Informal Opinion 2013-02: contrary approach; basis for Connecticut's Rule 1.2(d) amendment

See also

• ISBA Ethics Op. 17-01: Disclosure to Prevent Reasonably Certain Death or Bodily Harm
• NY State Bar Op. 1024: Counseling Clients Under the Medical Marijuana Law
• NY State Bar Op. 1177: Assisting Clients Under New York's Medical Marijuana Law
• CA COPRAC Op. 2020-202: Cannabis Representation

Source

• Landing page: https://www.isba.org/ethics/opinions/1407