Can a New York lawyer help clients comply with the state medical-marijuana law even though marijuana is still illegal under federal law?

Plain-English summary

New York adopted the Compassionate Care Act (CCA) in July 2014, creating a tightly regulated system for cultivating, dispensing, prescribing, and using medical marijuana. Federal criminal law, however, still prohibits marijuana with no medical exception, and the Department of Justice maintains the federal prohibition is valid even against conduct authorized by state law, while having published guidance restricting federal enforcement where actors comply with strong state regulation. The committee was asked whether the Rules let a lawyer advise and assist the public officials, registered organizations, physicians, and patients who must operate under the CCA (¶¶ 1-3).

The committee started from Rule 1.2(d), which bars a lawyer from counseling or assisting a client in conduct the lawyer knows is illegal or fraudulent, while permitting the lawyer to discuss the legal consequences of proposed conduct. It acknowledged the counter-intuitive premise: assisting compliance with the CCA could mean assisting conduct that violates federal narcotics law, including under accessory and conspiracy principles. It surveyed other states' committees, which had split: Maine, Connecticut, and Colorado read their rules to bar assisting the marijuana business itself, while Arizona and a King County (Washington) opinion permitted lawyers to assist clients with conduct expressly authorized by state law (¶¶ 4-20).

The committee resolved the question by treating the situation as highly unusual. A lawyer may always advise on the reach of federal law, and if the lawyer in good faith believed the federal law inapplicable or invalid, the lawyer could so advise without discipline even if later proved wrong (citing Matter of Vinluan v. Doyle). Rule 1.2(d) bars assistance only where the lawyer knows the conduct is illegal, and Rule 1.2(f) and Rule 1.16(c)(2) address situations of mere belief. The harder case is where the lawyer knows the conduct violates valid, enforceable federal law (¶¶ 21-23).

For that case, the committee concluded that where the state executive implements the law consistent with published federal enforcement policy, and the federal government does not act to prevent implementation, Rule 1.2(d) does not forbid the assistance. State conduct rules should be read to promote, not impede, state law, the regulatory scheme depends on lawyers, and federal forbearance itself presupposes lawyers establishing compliance systems. The committee stressed the work is not designed to evade detection, distinguishing Rule 1.2 Comment [9], and cautioned that if federal enforcement policy changed materially, the opinion might need reconsideration (¶¶ 24-26).

In practice

Under the New York rules as they stood at the time of the opinion, the opinion holds that a lawyer may give assistance regarding the CCA that goes beyond merely discussing the legality of the client's conduct, including helping agencies, registered organizations, physicians, and patients comply with the state scheme. Per the opinion, this conclusion rests on the then-current federal enforcement policy reflected in the August 2013 DOJ guidance; the committee expressly noted that a material change in federal enforcement might require reconsidering the opinion. The committee also treated Rule 8.4(b) as inapplicable, reasoning that assistance under these circumstances would not amount to illegal conduct reflecting on the lawyer's honesty, trustworthiness, or fitness.

Common questions

Q: Can a New York lawyer help a client set up or run a medical-marijuana business?

A: Yes, as to conduct designed to comply with the CCA. The committee concluded Rule 1.2(d) does not forbid assisting clients in implementing the state law, given the published federal enforcement policy (¶¶ 25-26).

Q: Does this opinion say federal law does not apply?

A: No. The committee assumed the federal marijuana prohibition remains valid and enforceable; its conclusion rests on federal enforcement policy, not on federal law being inapplicable (¶¶ 14, 23).

Q: Can a lawyer simply advise on the risks without helping implement the law?

A: Yes. A lawyer may always advise a client about the reach of federal law and how to conform to it, and may decline to give CCA-related assistance (¶¶ 21, 24).

Q: Could this conclusion change?

A: The committee said that if federal enforcement policy changed materially, the opinion might need to be reconsidered (¶ 25).

Background and rules framework

The opinion interprets New York Rule 1.2(d) and 1.2(f) (scope of representation; counseling or assisting illegal conduct), Rule 1.16(c)(2) (permissive withdrawal), and Rule 8.4(b) (illegal conduct reflecting on fitness), corresponding to ABA Model Rules 1.2, 1.16, and 8.4. The analysis turns on the interplay between New York's Compassionate Care Act and the federal marijuana prohibition under a published policy of restrained federal enforcement.

Citations and references

Rules of Professional Conduct:

• MR 1.2 / NY RPC 1.2(d), 1.2(f) (counseling or assisting illegal conduct; refusing to participate)
• MR 1.16 / NY RPC 1.16(c)(2) (permissive withdrawal)
• MR 8.4 / NY RPC 8.4(b) (illegal conduct reflecting on fitness)

Statutes:

• N.Y. Compassionate Care Act, Laws of 2014, Chap. 90
• 21 U.S.C. (federal Controlled Substances Act); 18 U.S.C. section 2; 21 U.S.C. section 846 (accessory and conspiracy liability)

Cases:

• Matter of Vinluan v. Doyle, 60 A.D.3d 237 (2d Dep't 2009), good-faith legal advice and the First Amendment
• Gonzales v. Raich, 545 U.S. 1 (2005), Commerce Clause reach of the federal marijuana prohibition

Other opinions cited:

• Arizona Op. 11-01 (2011); King County (Wash.) Op. (2013): lawyers may assist conduct authorized by state marijuana law
• Maine Op. 199 (2010); Connecticut Op. 2013-02; Colorado Op. 125 (2013): contrary conclusions under their rules

See also

• NY State Bar Op. 1106: Advising a criminal client on drug-treatment diversion
• NY State Bar Op. 1048: Advising a defendant on a plea waiver of ineffective-assistance claims

Source

• Landing page: https://nysba.org/ethics-opinion-1024/