Cannabis Law Series, Vol. 1: Advising Clients in the Cannabis Industry
By: Abigail Peckham
So often we are asked to determine whether a client may, or may not, do something within the bounds of the law that we forget to stop and ask if what we, the lawyer, are doing is permissive. While explaining to my supervising attorney that I would like a portion of my future practice to involve counselling clients in the cannabis industry I realized that I was not certain if my practice could include that industry. After all, cannabis remains illegal at the federal level, and as attorneys we are beholden to the constitution as the wellspring of all federal and state law—no? Rather than empower what the law determines to be a criminal industry with guidance as to regulations and safety measures, lawyers should steer clear of the whole business to maintain their good standing—right? To quote one of my law professors, I found myself “on the horns of a dilemma.” Could an attorney properly counsel clients in the commercial, or general, cannabis industry without running afoul of the model rules and/or federal law?
I. The Cannabis Industry is Growing Momentum
Within a short span of history, the national perception of cannabis has shifted greatly. It
is said that the drug was first introduced in America in 1606, and demand for hemp (one of its byproducts) was so great that in 1619 legislation was passed which “require[ed] colonists to grow the crop.” The medicinal properties of the plant were explored at the outset of the 1800s and it was acknowledged that marijuana was an “effective painkiller and sedative.” This exploration quickly came to a halt with the passage of laws like the Harrison Narcotics Tax Act of 1914 and the emergence of the temperance movement in the United States. Alcohol and drugs were seen as the driving forces behind the evil in society like poverty and crime. After the World Wars, legislation against cannabis tightened and carried mandatory sentences with heavy fines. This history culminated in 1970 with the enactment of the Controlled Substances Act (CSA), which is Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970. When President Richard Nixon declared his war on drugs, and subsequently established the Drug Enforcement Administration in 1973, the fate of cannabis seemed to be sealed.
Yet, while President Nixon was declaring his war, doctors in the United States were trying to combat the rising AIDS epidemic and stymie the side effects of cancer treatments like radiation and chemotherapy. Within the medical profession it was understood that cannabis demonstrated properties that helped people suffering from these afflictions. As it stood, the drug’s full potential was unknown—and unknowable—absent comprehensive research. Unfortunately, the stigma that would secure marijuana’s position as a Schedule I controlled substance (along with ecstasy, heroin, cocaine, etc.) had already taken root and was controlling the narrative within society at the time. With nicknames like “The Devil’s Lettuce” and warnings such as “the Killer Drug ‘Marijuana’—a powerful narcotic in which lurks Murder! Insanity! Death!” the fate of the plant appeared sealed.
Nearly two decades later, and in spite of the attempts to convince the population that marijuana was the root of all evil, the voters in California passed Proposition 215 making the sunshine state the first in the country to permit its citizens to use it medicinally. With the passage of this bill, it came time to determine the “potential therapeutic uses for marijuana” which was the subject of a report by the Institute of Medicine. Among other things, the report stated that “the data on the adverse effects of marijuana are more extensive than the data on its effectiveness.” With this foothold in place, other state legislatures followed suit and, over the subsequent decades, passed legislation to implement medical marijuana programs. As of 2020 “[a] total of 36 states, District of Columbia, Guam, Puerto Rico and U.S. Virgin Islands have approved comprehensive, publicly available medical marijuana/cannabis programs.” Further, by 2023 the commercial industry for legal marijuana could grow to a workforce of half a million employees and revenues of $30 billion.
Estimates like this make certain routine scenarios foreseeable. Except the outcomes at law are no longer clear because the circumstances now involve marijuana—a Schedule I substance under federal law. Cast a net of regulations over a growing industry and perhaps, just perhaps, it might catch a criminal or, at a minimum, easy revenue from fines in the web. It seems that the most pragmatic solution for resolving the concerns/conflicts of an entrepreneur or a medical marijuana patient–federal employee would be to seek the advice of an attorney. Retaining an attorney would be an open-and-shut matter in most cases but this is not most cases. Accordingly, before determining any “concrete” outcome for routine cases involving the marijuana industry and/or plant as medicine, the lawyer must first determine whether they can counsel the marijuana client.
II. The Attorney’s Federalism Dilemma
As one doctor aptly stated, “marijuana use has been rapidly shifting as more and more states are legalizing cannabis for the treatment of medical conditions and recreational use. This growing acceptance, accessibility, and use of cannabis and its derivatives [raise] important public health concerns. . . . As laws and policies . . . change, research must also.” The research she mentions is applicable to attorneys, too. Apart from keeping up on the laws to satisfy a competency requirement of the model rules, the savvy attorney will also understand the dynamics of federal law, state law, and their obligations under the relevant jurisdiction’s Rules of Professional Responsibility.
While states are free to modify their laws from those at the federal level, within certain parameters, the federal government holds the ultimate trump card – the Supremacy Clause. That clause mandates federal law to be “the supreme Law of the Land” and effectively takes precedence over state law to the contrary. This persnickety dichotomy lays the foundation for why lawyers may have a problem counselling the marijuana client. Federal law establishes which drugs and/or substances are illegal for consumers to possess and/or use. The Supremacy Clause ensures that the federal designation controls over state law. Therefore, even if a state has legally passed legislation establishing comprehensive marijuana programs, handling marijuana remains a crime.
Why, in the world, does this matter if lawyers are in the business of crime? Rule 1.2(d) of the Model Rules of Professional Responsibility is illustrative. It states, in relevant part that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal.” However, the lawyer is, of course, able to give advice to the client which puts them in the best position “to make a good faith effort to determine the validity, scope, meaning, or application of the law.” Once again, it would seem as if the lawyer were on the horns of a dilemma, but now the two horns are federal law and state law. Luckily, we operate within a democracy, and in 2013 the “Cole Memorandum” was issued by then Deputy Attorney General James M. Cole.
The memorandum set forth guidance, based on public policy, for prosecuting and investigating offenses involving marijuana. Prosecutors were to target “priorities” such as “preventing the distribution of marijuana to minors; preventing the revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels . . . preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity. . . .” Finally, the memo gave the states an opportunity to step up and take greater control over the situation:
The Department’s guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests. A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice.
Many states took the offer, and responded to this guidance by passing rules, amending rules, or issuing ethics opinions for attorneys looking to practice in this area. Of particular importance to my quandary, Rhode Island and Massachusetts have each been not only receptive to the changes in the law and public opinion but they have also offered guidance to lawyers who wish to practice in the cannabis field (no pun intended) but comply with their ethical duties.
Responding to a question presented by two attorneys, the Ethics Advisory Panel of the Rhode Island Supreme Court concluded that so long as they informed their clients about the federal law (the Controlled Substances Act), they could “ethically advise clients about Rhode Island’s medical marijuana law, and . . . represent, advise, and assist clients.” The Panel there expressly found that just because a lawyer’s services and activities would be unlawful under federal law, so long as they are lawful under Rhode Island law, the attorney could not run afoul of their ethical obligations. Among other things, the Panel relied on the Cole Memorandum as having “relaxed” federal marijuana enforcement and also other jurisdictions treatment of the question. Finding a general desire to protect medical patients who stand to be incarcerated for using a substance that relieves some of their ailments, the Ethics Panel in Rhode Island has confirmed that attorneys can ethically assist their clients to that end.
Similarly, the Massachusetts Board of Bar Overseers issued guidance to attorneys practicing in the Commonwealth in connection with the changing marijuana laws. Unlike Rhode Island, however, Massachusetts has gone further and made it legal for citizens to use cannabis recreationally. Therefore, the need for comprehensive guidance to attorneys, in light of the potential public health and welfare implications, is enormous. In 2016 the Massachusetts BBO announced that they “will not prosecute a member of the Massachusetts bar solely for advising a client regarding the validity, scope, and meaning of Massachusetts statutes and laws regarding medical or other legal forms of marijuana . . . as long as the lawyer also advises the client regarding related federal law.” Not only are the two jurisdictions neighbors geographically, but they also share in their approach to informing practicing attorneys how to remain ethical in a swirling sea of change.
With the new administration about to take office, who knows where this area of law will go…never mind the scientific research. For now, it appears that an attorney can remain ethical while advising marijuana clients as to the laws that work upon them so long as the lawyer also informs the client of the federal laws. So long as the national consensus continues trending towards a general acceptance of cannabis as medicine or a recreational intoxicant, there will be more situations where marijuana is not only involved but drives how the law operates. By maintaining a comprehensive understanding of the legal framework and staying up on compliance with regulations a lawyer can ethically engage in this booming industry…or be left high and dry.
 I will use “cannabis” and “marijuana” interchangeably throughout this research paper.  The History of Marijuana in Society, Foundations Recovery Network, https://dualdiagnosis.org/marijana-treatment/reefer-madness-look-evolution-marijuana-society/ (last visited Dec. 5, 2020).  Id.  Id.  Id. Specifically legislation such as the Boggs Act of 1952 and the Narcotics Control Act of 1956. Id.  P.L. 91-513, 84 Stat. 1236 (1970). Cannabis has been labeled as a Schedule I controlled substance. “Schedule I substances are deemed to have no currently accepted medical use in treatment and can only be used in very limited circumstances . . . . Because controlled substances classified as Schedule I drugs have ‘a high potential for abuse’ with ‘no currently accepted medical use in treatment in the United States’ . . . they may not be dispensed under a prescription.” Todd Garvey & Brian T. Yeh, Cong. Res. Serv., R43034, State Legalization of Recreational Marijuana: Selected Legal Issues 6 (2014).  Id.  See The History of Marijuana in Society, supra note 2.  Id.  National Conference of State Legislatures, State Medical Marijuana Laws, NCSL.org (Nov. 11, 2020) https://www.ncsl.org/research/health/state-medical-marijuana-laws.aspx.  Id.  Institute of Medicine, Marijuana and Medicine 137 (Janet E. Joy et al. eds, 1999).  State Medical Marijuana Lawssupra note 10.  Scott O’Connell, Ethical Issues for Attorneys Providing Services to the Cannabis Industry, Nixon Peabody Blog (Jan. 31, 2020) https://www.nixonpeabody.com/en/ideas/blog/trending/2020/01/31/ethical-issues-for-attorneys-providing-services-to-the-cannabis-industry.  Health Effects of Marijuana and Cannabis-Derived Products Presented in New Report, NationalAcademies.Org (Jan. 12, 2017), https://www.nationalacademies.org/news/2017/01/health-effects-of-marijuana-and-cannabis-derived-products-presented-in-new-report. In addition to recommending more research on the beneficial and harmful effects of cannabis and cannabinoid use, the committee emphasized several challenges and barriers in conducting such research. For instance, specific regulatory barriers, including the classification of cannabis as a Schedule I substance, impede the advancement of research. Researchers also often find it difficult to gain access to the quantity, quality, and type of cannabis product necessary to address specific research questions. The committee said a diverse network of funders is needed to support cannabis and cannabinoid research. Id.  U.S. Const., Art. VI, cl. 2.  21 U.S.C. §§801 et seq. See also supra text accompanying note 6.  Model Rules of Prof’l Conduct R. 1.2(d) (2018).  Id.  Memorandum from James M. Cole, Deputy Atty. Gen., to All United States Attorneys (Aug. 29, 2013).  Id. at 1–2 (setting forth eight distinct points of focus for the prosecutors in the country).  Id. at 1.  Id. at 2.  See O’Connell, supra note 14.  These are the primary jurisdictions within which I wish to practice.  R.I. Ethics Advisory Panel Op. 2017-01 at 3 (Feb. 13, 2017) (available at 17-01.pdf (ri.gov)).  Id. at 2.  Id.