Can a New York lawyer still help clients comply with the state's medical marijuana law after the federal Cole Memo was rescinded, given that marijuana remains illegal under federal law?
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This page answers the general question as of 2019. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
New York's Compassionate Care Act (2014) permits and regulates medical marijuana. In N.Y. State 1024 (2014), the committee concluded that, given federal enforcement policy (then reflected in the DOJ's Cole Memo), Rule 1.2(d) permits a lawyer to assist a client in conduct designed to comply with the state law, while cautioning that the opinion might need reconsideration if federal enforcement changed materially. After that opinion, Congress enacted the Rohrabacher Amendment, which bars the DOJ from spending appropriated funds to prevent states from implementing their medical marijuana laws (the basis of United States v. McIntosh), and Congress has renewed it; the Cole Memo was rescinded in January 2018. The inquiry asks whether the committee still adheres to Opinion 1024.
The committee concludes that it does. Rule 1.2(d) bars a lawyer from counseling or assisting a client in conduct the lawyer knows is illegal or fraudulent, but allows discussing the legal consequences of proposed conduct. Opinion 1024 reasoned that, ordinarily, a lawyer could advise on but not assist conduct violating enforceable federal law, even if lightly enforced, but that the situation differs where the state executive implements and regulates medical marijuana consistent with published federal enforcement policy and the federal government does not take effective measures to prevent it. In that setting, the committee read Rule 1.2(d) (adopted from an ABA model with no indication anyone considered this unusual situation) not to preclude lawyers from serving their traditional role in assisting conduct that is legal under state law.
The committee holds that rescinding the Cole Memo does not meaningfully change federal enforcement policy; if anything, the Rohrabacher Amendment reinforces the conclusion, because federal legislation now affirmatively prohibits the DOJ from preventing states from implementing their medical marijuana laws. It reaffirms that the Rules permit lawyers to give legal assistance regarding the Compassionate Care Act that goes beyond merely discussing the legality of the client's conduct.
In practice
Under this opinion, a New York lawyer may provide traditional legal assistance to clients seeking to act in compliance with New York's medical marijuana law, not merely advise them about the federal-law risk, despite marijuana's continued illegality under federal law. The opinion holds that this rests on current federal enforcement policy and the Rohrabacher Amendment; it reiterates Opinion 1024's caveat that the analysis depends on that federal posture, and notes that lawyers remain free to decline such work.
Common questions
Q: Can a New York lawyer help a client comply with the state medical marijuana law despite the federal ban?
A: Per the opinion, yes. Rule 1.2(d) permits a lawyer to assist a client in conduct designed to comply with New York's medical marijuana law, given current federal enforcement policy.
Q: Did the rescission of the Cole Memo change the answer?
A: Per the opinion, no. The committee found the rescission did not meaningfully change federal enforcement policy, and the Rohrabacher Amendment (barring the DOJ from preventing state implementation) reinforced the earlier conclusion.
Q: Does the opinion let lawyers do more than just discuss the law's risks?
A: Per the opinion, yes. It permits legal assistance regarding the Compassionate Care Act that goes beyond a mere discussion of the legality of the client's proposed conduct; the analysis depends on continued federal enforcement forbearance.
Background and rules framework
The opinion interprets New York Rule 1.2(d) (a lawyer shall not counsel or assist a client in conduct the lawyer knows is illegal or fraudulent, but may discuss legal consequences). This corresponds to ABA Model Rule 1.2(d). The committee expressly grounds the analysis in federal enforcement policy and the Rohrabacher Amendment, treating questions of federal law as background rather than matters it decides.
Citations and references
Rules of Professional Conduct:
- New York Rule of Professional Conduct 1.2(d)
- ABA Model Rule 1.2(d) (analogue)
Statutes and authorities (referenced as background):
- New York Compassionate Care Act (2014); the Rohrabacher (now Rohrabacher-Blumenauer) Amendment
Cases:
- United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), barring DOJ prosecution of those complying with state medical marijuana laws
Other opinions cited:
- N.Y. State 1024 (2014): reaffirmed; assisting clients under the medical marijuana law
See also
Source
- Landing page: https://nysba.org/ethics-opinion-1177/
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