Bringing the uproar surrounding attorney representation of Ohio medical marijuana clients largely to an end, on September 20th the Ohio Supreme Court formally adopted an amendment to Prof.Cond.R. 1.2(d). The new Rule 1.d(d) reads:
(d)(1) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is illegal or fraudulent. A lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client in making a good faith effort to determine the validity, scope, meaning, or application of the law.
(2) A lawyer may counsel or assist a client regarding conduct expressly permitted under Sub. H.B. 523 of the 131st General Assembly authorizing the use of marijuana for medical purposes and any state statutes, rules, orders, or other provisions implementing the act. In these circumstances, the lawyer shall advise the client regarding related federal law.
As amended, this rule change would resolve the concerns of many lawyers (including our firm) regarding the representation of clients in the medical marijuana industry. As previously noted here, however, new subsection (d)(2) differs from language used in other states in that it only authorizes attorney assistance with conduct “expressly permitted” under H.B. 523, while also advising about the consequences of federal prohibition. Other states, such as Alaska, clarify that an attorney may assist clients in conduct the lawyer “reasonably believes” is permitted under state law. This important distinction means that Alaska recognize that an attorney’s role is often to make a good faith determination regarding what is (or is not) authorized under existing law.
In Ohio, it is conceivable that a client may ask something like, “The law isn’t clear on whether my proposed conduct is allowable. Research whether it is permitted, and if so, advise me regarding how I can engage in it.” If the lawyer concludes that the conduct is permitted, but is wrong, the lawyer could (in theory) be subject to discipline because the Rule only authorizes conduct “expressly permitted” — there does not appear to be an allowance for reasonable mistakes as to the scope of the law.
In addition, this change does not address whether the Rules authorize an attorney to use medical marijuana or whether an attorney may own and/or operate a medical marijuana establishment. Those issues continue to be addressed only by the August advisory opinion.
All things in consideration, Ohio lawyers and the Ohio medical marijuana community in general are in a better position than they were a few weeks ago. The Ohio Supreme Court moved astonishingly fast to address this issue, and for that they should be commended. Let’s hope the Department of Commerce and State Board of Pharmacy act as quickly as they draft the industry rules over the coming months.