Can a Pennsylvania lawyer use medical marijuana without risking their law license?

Plain-English summary

The opinion identifies Rule 8.4(b), which bars a lawyer from committing "a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects," as "the provision of the RPCs that would be most likely to apply here." It notes that conduct compliant with the Medical Marijuana Act is not a criminal act under Pennsylvania law, but for the sake of the inquiry assumes that obtaining and possessing medical marijuana, a Schedule I substance under the federal Controlled Substances Act, would violate federal law even though authorized by the state.

The opinion resolves the federal-illegality tension by focusing on what Rule 8.4(b) actually prohibits. It reasons that "not all crimes, even federal crimes, violate RPC 8.4(b)," which reaches only acts that reflect adversely on a lawyer's fitness. Relying on Comment [2] to Rule 8.4, it concludes "there is nothing inherently 'dishonest' or 'untrustworthy' about carrying on such state-sanctioned activity." It also points to Rule 1.2(e), adopted in apparent response to the Act, under which "a lawyer may counsel or assist a client regarding conduct expressly permitted by Pennsylvania law, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client's proposed course of conduct," treating that adoption as the Supreme Court's acknowledgment of lawyers acting to further the Act's policies.

The opinion adds an impairment caveat. Under Rule 1.16(a)(2) and the competence and diligence duties of Rules 1.1 and 1.3, it states that "all lawyers are under a constant obligation to consider whether they have medical or physical conditions that might, at least temporarily, impair their ability to represent clients." It distinguishes a contrary North Dakota opinion because North Dakota then deemed all marijuana illegal with a legislative policy of no accepted medical use, whereas Pennsylvania expressly authorizes medical marijuana use.

In practice

Under this opinion, a Pennsylvania lawyer's lawful use of medical marijuana in conformance with the Medical Marijuana Act does not by itself violate the Rules, because the conduct does not reflect adversely on fitness under Rule 8.4(b) and Rule 1.2(e) recognizes counseling clients on state-permitted conduct. The opinion holds that the lawyer still has a continuing obligation under Rule 1.16(a)(2) and Rules 1.1 and 1.3 to consider whether any medical condition or medication temporarily impairs the ability to represent clients.

Common questions

Q: Will using medical marijuana put my license at risk?

A: The opinion concludes that lawful use under the Medical Marijuana Act "should not, by itself, give rise to a violation of the Pennsylvania Rules of Professional Conduct."

Q: What about the fact that marijuana is still illegal federally?

A: The opinion reasons that "not all crimes, even federal crimes, violate RPC 8.4(b)," which reaches only acts reflecting adversely on a lawyer's fitness, and concludes state-sanctioned activity is not inherently dishonest or untrustworthy.

Q: Can I advise clients about Pennsylvania's medical marijuana industry?

A: The opinion points to Rule 1.2(e), under which a lawyer may counsel a client regarding conduct expressly permitted by Pennsylvania law, provided the lawyer also advises the client about the consequences under other applicable law.

Q: Are there any limits the opinion stresses?

A: Yes. The opinion stresses the continuing duty under Rule 1.16(a)(2) and Rules 1.1 and 1.3 to consider whether a medical condition or medication might, at least temporarily, impair the lawyer's ability to represent clients.

Background and rules framework

The opinion interprets Pennsylvania Rule of Professional Conduct 8.4(b) (criminal acts reflecting on fitness, with Comment [2]) and Rule 1.2(e) (counseling on conduct expressly permitted by Pennsylvania law), together with Rule 1.16(a)(2) (withdrawal for impairment) and Rules 1.1 and 1.3 (competence and diligence), against the Pennsylvania Medical Marijuana Act and the federal Controlled Substances Act. Rules 8.4, 1.16, 1.1, and 1.3 track the ABA Model Rules; Rule 1.2(e) is a Pennsylvania provision.

Citations and references

Rules of Professional Conduct:

• Pa.R.P.C. 8.4(b), including Comment [2]; ABA Model Rule 8.4
• Pa.R.P.C. 1.2(e); Pennsylvania provision on state-permitted conduct
• Pa.R.P.C. 1.16(a)(2), 1.1, 1.3; ABA Model Rules 1.16, 1.1, 1.3

Statutes:

• Pennsylvania Medical Marijuana Act, 35 P.S. § 10231.101 et seq.
• Federal Controlled Substances Act (Schedule I classification)

Other opinions cited:

• PA Informal Op. 2016-017: marijuana organization participation
• Colorado Bar Formal Op. 124: same conclusion, similar reasoning
• N.D. Ethics Op. 14-02: contrary conclusion (distinguished)

See also

• ABA Formal Op. 491: Avoiding Counseling or Assisting a Crime or Fraud Under Rule 1.2(d)
• PA Bar Ethics Op. 2026-100: Use of the Designation "Of Counsel"

Source

• Landing page: PBA Ethics Opinions (Public)
• Original PDF: F2021-200.pdf