May a Missouri lawyer represent a client engaged in conduct authorized by Missouri's medical-cannabis law but potentially prohibited by federal law?

Plain-English summary

The opinion addresses representation of people or businesses acting under Article XIV of the Missouri Constitution, which it identifies as Medical Cannabis.

Rule 4-1.2(f) prohibits counseling or assisting conduct the lawyer knows is criminal or fraudulent. It permits discussion of legal consequences and counseling or assistance for a good-faith effort to determine the law's validity, scope, meaning, or application.

Comment [8] addresses conflicts between state and federal law. The lawyer must advise the client of the conflict, may not personally violate federal law, and may not counsel or assist the client in how to perform an act that violates federal law even when state law permits the act. Whether particular conduct violates federal law is a legal question the opinion does not answer.

The opinion also notes that a lawyer's violation of federal law may constitute professional misconduct under Rule 4-8.4(b) if the criminal act reflects adversely on honesty, trustworthiness, or fitness as a lawyer.

In practice

Under this opinion, the analysis turns on whether the contemplated representation conflicts with federal law. The ethics opinion supplies the duties to advise about the conflict and not violate or assist violation of federal law, while leaving the underlying federal-law determination unresolved.

Common questions

Q: Does the opinion give blanket permission to assist every medical-cannabis business authorized by Missouri law?

A: No. It conditions the analysis on federal law and says a lawyer may not violate federal law or counsel or assist a client in performing an act that violates it.

Q: May the lawyer explain the legal consequences of a proposed course of conduct?

A: Yes. Rule 4-1.2(f) permits discussing legal consequences and assisting a good-faith effort to determine the law's validity, scope, meaning, or application.

Q: What must the lawyer say when state and federal law conflict?

A: Comment [8] requires the lawyer to advise the client of the conflict.

Q: Does the opinion decide whether medical-cannabis conduct violates federal law?

A: No. It identifies that as a question outside the Rules of Professional Conduct.

Background and rules framework

The opinion applies Rule 4-1.2(f) and Comment [8], which also direct attention to Rules 4-1.1 and 4-1.4. It identifies Rule 4-8.4(b) as the misconduct rule potentially implicated when a lawyer commits a federal crime that reflects adversely on professional fitness.

Citations and references

Rules of Professional Conduct:

• Missouri Rules 4-1.1, 4-1.2(f), 4-1.4, and 4-8.4(b)
• Missouri Rule 4-1.2 Comment [8] and Scope [21]

Other authorities:

• Missouri Constitution Article XIV, Medical Cannabis

See also

• Minnesota LPRB Op. 23: Advising on Medical Marijuana
• California Ethics Op. 2020-202: Cannabis Representation
• Rhode Island Ethics Op. 2017-01: State Medical-Marijuana Advice

Source

• Landing page: Missouri Informal Opinion 2021-02

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Question: May a lawyer represent individuals or businesses in conduct pursuant to Article XIV of the Missouri Constitution, entitled “Medical Cannabis,” which is also frequently referred to as medical marijuana?

Answer: Rule 4–1.2(f) states: “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.”

The Comments accompanying each Rule of Professional Conduct “are intended as guides to interpretation, but the text of each Rule is authoritative.” Scope [21].

Comment [8] to Rule 4–1.2 states: “In counseling or assisting, if a state law conflicts with federal law, the lawyer should advise the client of that fact but cannot (1) undertake conduct that would violate federal law or (2) counsel or assist the client as to how to perform an act that would violate federal law even if that conduct would be lawful under the state statutory or constitutional law. See Rule 4–1.1 and 4–1.4.”

If a lawyer representing individuals or businesses in conduct pursuant to Article XIV of the Missouri Constitution, Medical Cannabis, would be in conflict with federal law, the lawyer should advise the client of that fact, but the lawyer cannot undertake conduct that would violate federal law or counsel or assist a client as to how to perform an act that would violate federal law even if that conduct would be lawful under the state statutory or constitutional law. Whether such conduct would violate federal law is a question outside the Rules of Professional Conduct. Further, Rule 4–8.4 (b) states that “It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Violation of federal law by a lawyer may rise to the level of misconduct under Rule 4–8.4(b).