Confusion continues regarding whether Ohio doctors can recommend medical marijuana. 

Earlier this month, the Ohio State Medical Board provided “guidance” to doctors relating to medical marijuana, stating that they should not recommend medical marijuana to patients until the Board finalizes its rules to certify doctors to make those recommendations — a process that could take until September 2017.

According to that guidance:

“A physician is not permitted to issue a state of Ohio approved written recommendation to use medical marijuana until the physician has obtained a certificate to recommend from the State Medical Board of Ohio. Per House Bill 523, the rules outlining the standards and process needed to obtain such a certificate to recommend will be developed no later than September 8, 2017.”

State Senator David Burke felt the “guidance” was unnecessary, telling Cleveland.com, “Willing physicians are in the free and clear[.]” He also noted that Ohio doctors will have to treat marijuana as a controlled substance under state law. “The affirmative defense was meant to allow for a quick transition for folks who need this product sooner than later[,]” he said.

The Gongwer News Service reported, however, that at yesterday’s meeting of the State Medical Board, member Robert Giacalone said that “the Medical Board is in no way prohibiting the recommendation of medical marijuana now that HB 523 is effective.” He further said:

“If Ohio physicians wish to recommend medical marijuana before the rules are in place, we strongly recommend that they contact a private attorney because the legislation is not crystal clear and could be interpreted as providing conflicting instructions to physicians.”

Giacalone’s statement appears to be a 180 degree turn from the “guidance” offered by the Board earlier this month, which did explicitly say that Ohio physicians were not permitted to recommend medical marijuana prior to being certified to do so by the State Medical Board. That being said, Giacalone is absolutely correct that HB 523 is not crystal clear when it comes to physician discipline for recommending medical marijuana.

Under R.C. 4731.30(B)(1), for instance, an Ohio physician seeking to recommend treatment with medical marijuana “shall” apply to the State Medical Board for a certificate to recommend — however, this section does not explicitly state that physicians must apply for certification before they recommend medical marijuana.  Furthermore, subsection (C)(1) is clear that a “physician who holds a certificate to recommend” may recommend medical marijuana to patients, but this section does not state that only physicians holding this certificate can recommend medical marijuana.  And, under R.C. 4731.22(B)(49), a physician may be disciplined for “failing to comply with the requirements of section 4731.30 of the Revised Code or rules adopted under section 4731.301 of the Revised Code when recommending treatment with medical marijuana.”

In other words, if R.C. 4731.30(B)(1) and (C)(1) require physicians to be certified before recommending medical marijuana, then R.C. 4731.22(B)(49) could allow for that physician to be disciplined if he or she recommends marijuana prior to being certified.

Under R.C. 4731.30(H), though, a physician is immune from civil liability and may not be disciplined by the State Medical Board or Board of Pharmacy (or be prosecuted criminally) for doing any of the following:

  1. Advising a patient, patient representative, or caregiver about the benefits and risks of medical marijuana to treat a qualifying medical condition;
  2. Recommending that a patient use medical marijuana to treat or alleviate the condition; or
  3. Monitoring a patient’s treatment with medical marijuana.

On its face, this subsection does grants immunity to all physicians recommending medical marijuana, regardless of whether that physician has been previously certified — and, in fact, it may render the certification requirement practically meaningless. Thus, there appears to be a direct conflict between R.C. 4731.30(H) and R.C. 4731.30(B)(1) and (C)(1).

Another interesting question is whether R.C. 4731.22(B)(49) applies to physicians who simply advise patients about the risks/benefits of medical marijuana or monitor the patient’s treatment, as the law does not explicitly call for discipline against physicians for engaging in those activities, with or without a certificate from the State Medical Board.

And as if the above analysis wasn’t confusing enough, it gets even more convoluted when one considers the Ninth Circuit case of Conant, et al. V. Walters, et al., 309 F.3d 629 (9th Cir. 2002). In that case, a group of physicians and patients argued that interfering with physicians from recommending medical marijuana violated the First Amendment — and they won an injunction against the federal government. To my knowledge, Conant has not been adopted by the 6th Circuit or any Ohio state court — but the First Amendment implications of Ohio’s new medical marijuana law cannot be ignored.

At the end of the day, there will likely be Ohio physicians issuing written recommendations to patients before the State Medical Board certifies them to do so. If they find themselves subject to disciplinary proceedings, they will at least have plausible arguments that R.C. 4731.30(H) and the First Amendment prevent discipline from being imposed.

Ohio Supreme Court formally adopts Amendment to Rule 1.2, clarifying that Ohio lawyers can advise medical marijuana companies

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.

Read more on this topic on Cleveland.com by clicking here. 

Attorney Ethics and Legal Marijuana: Ohio Supreme Court Proposes Partial Fix

We’ve covered the ethical issues associated with legal marijuana on this blog previously, including the August 2016 advisory opinion issued by the Board of Professional Conduct. Today, the Ohio Supreme Court proposed a rule change to Rule 1.2 that would allow attorneys to represent medical marijuana clients regarding conduct “expressly permitted” under H.B. 523.

The August advisory opinion held that Rule 1.2(d) barred attorneys from offering traditional legal services to medical marijuana clients. The opinion also left open the possibility that an Ohio lawyer’s use of medical marijuana and ownership interest in a medical marijuana business could lead to discipline under Rules 8.4(b) or 8.4(h).

The proposal offered today by the Ohio Supreme Court only addresses the first issue: lawyer representation of marijuana businesses under Rule 1.2. As proposed, Rule 1.2 is separated into two subsections, with a new subsection (2) reading:

(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 also advise the client regarding related federal law.

This language is notably more limited than language used in other states. In Alaska, for instance, the state adopted a new Rule 1.2 (f) that allowed lawyers to advise regarding conduct the lawyer “reasonably believes” is authorized by Alaska’s marijuana laws. The rule proposed by the Ohio Supreme Court, however, specifies that a lawyer’s advice must relate to conduct “expressly permitted” under H.B. 523.

In addition, the Supreme Court has not amended Rule 8.4 in any way — which continues to leave open the possibility that a lawyer’s use of medical marijuana could lead to discipline. This is still a big problem.

The Court will accept comments on this proposal through September 18, 2016. Comments may be forwarded either by mail or email to:

John VanNorman, Senior Policy and Research Counsel
Ohio Supreme Court
65 S. Front St., Seventh Floor
Columbus, OH 43215
or
John.VanNorman@sc.ohio.gov

At the end of the day, there is no question that proposed Rule 1.2(d)(2) represents real progress when it comes to attorney involvement in the Ohio medical marijuana industry. While the language may need tweaked, even as written it allows an attorney to represent a medical marijuana business with the traditional legal services the Board deemed prohibited in the August advisory opinion. Plus, kudos to the Court for acting so quickly.

You can view the full proposal from the Ohio Supreme Court by clicking here.

Attorney Ethics and Legal Marijuana: Amendments Proposed to Rules 1.2 and 8.4

The recent advisory opinion issued by the Ohio Supreme Court Board of Professional Conduct has led to a myriad of concerns among lawyers and others in Ohio’s medical marijuana community. Thankfully, the Chief Justice of the Ohio Supreme Court is aware and the Court is moving to address these concerns:

“Although non-binding, the Court is aware that the advisory opinion has led some lawyers to question whether they can assist clients in complying with the new law,” Chief Justice Maureen O’Connor said. “The Court hopes to act expeditiously in addressing their concerns and, if necessary, amend ethics rules to clarify the role of attorneys in light of the new law.” She noted that attorneys in other states have faced similar ethics challenges.

The Court will consider the proposed amendments to the Rules of Professional Conduct later this month and, if approved, publish the rules for public comment. “Again, the Court intends to act as swiftly as possible,” Chief Justice O’Connor said. “However, we do not want to rush the process to the point of creating additional problems,” the Chief Justice concluded.

On August 17, our law firm submitted proposed changes to the Board of Professional Conduct as outlined below. These proposals, if accepted, would open legal services to the medical marijuana industry and further specify that lawyers may use medical marijuana as long as that use does not adversely affect the lawyer’s practice and client representation, and also that lawyers may own or operate a medical marijuana business.

We proposed that the Ohio Supreme Court should adopt a new Rule 1.2(f) that uses language similar to that used in Alaska:

(f) Notwithstanding division (d) of this rule, a lawyer may counsel and advise a client regarding Ohio’s marijuana laws, and may assist the client to engage in conduct that the lawyer reasonably believes is authorized by those laws. If Ohio law conflicts with federal law, the lawyer shall also advise the client regarding related federal law and policy.

This amendment would clarify that Ohio lawyers can advise and assist clients under Ohio’s medical marijuana laws, as long as the lawyer also advises regarding federal law and any consequences of conflicts between state and federal policy. We also proposed adopting a new comment to Rule 1.2, explicitly identifying that lawyers can ethically provide services that are prohibited by Advisory Opinion 2016-6.

As it relates to an attorney’s use of medical marijuana and ownership in a medical marijuana business, we proposed adding a new comment to Rule 8.4 that provides:

[6] Divisions (b) and (h) of this Rule do not prohibit a lawyer from engaging in conduct that the lawyer reasonably believes is authorized by Ohio’s marijuana laws, including R.C. 3796, et seq. and all administrative regulations promulgated pursuant to Ohio’s medical marijuana control program.

Therefore, an Ohio lawyer may use medical marijuana in a method the lawyer reasonably believes is authorized under Ohio law as long as such use does not adversely affect the lawyer’s work or representation of clients.

In addition, nothing in divisions (b) and (h) of this Rule prohibits a lawyer from having an ownership interest in, being employed by, or lending money to a medical marijuana enterprise that the lawyer reasonably believes is authorized under Ohio law.

This comment is necessary to protect lawyers using medical marijuana from discipline, as long as the lawyer’s use does not adversely affect the lawyer’s clients — similar to situations where an attorney chooses to use alcohol or when an attorney is prescribed medication to treat a medical condition.

We should know within the next few weeks how the Court intends to move forward and whether the Rules of Professional Conduct will be amended. One thing seems clear, however: the Court recognizes the untenable situation facing Ohio lawyers and the medical marijuana community and the Court intends to fix the problem.

You can view our firm’s submission in its entirety by clicking here. 

Attorney Ethics and Legal Marijuana: Advisory Opinion 2016-6

Summary

This past June, a number of Ohio attorneys (including our firm) submitted a request to the Board for an advisory opinion on three distinct issues (for a primer on the professional issues involving Ohio’s medical marijuana law, click here):

  1. Whether an Ohio lawyer may ethically counsel, advise, and represent medical marijuana cultivators, processors, retail dispensaries, testing laboratories, caregivers, and/or patients as each may be licensed or seek to become licensed under Ohio state law;
  2. Whether an Ohio lawyer (or a member of a lawyer’s immediate family) may ethically operate or hold an ownership interest in a medical marijuana cultivator, processor, retail dispensary, and/or testing laboratory as each may be licensed (or may apply for a license) under Ohio state law; and
  3. Whether an Ohio lawyer may ethically use medical marijuana as provided by Ohio state law.

The Board responded by announcing a non-binding opinion on August 11, that essentially prohibited lawyers from representing the Ohio medical marijuana community. The only remedy to the untenable situation existing in Ohio is a change to the Ohio Rules of Professional Conduct — something that Chief Justice O’Connor has asked the Board to consider. Recently, our firm proposed changes to the Rules clarifying that lawyers can represent Ohio medical marijuana companies, and also that Ohio lawyers can use medical marijuana and own/operate medical marijuana businesses.

Advisory Opinion 2016-6: Ethical Implications for Lawyers under Ohio’s Medical Marijuana Law

Advice and Legal Services Provided to Clients Engaged in Conduct as a State Regulated Marijuana Enterprise

The Board began its analysis noting that Rule 1.2(d) prohibits a lawyer from assisting a client engaging or seeking to engage in conduct the lawyer knows is illegal. Importantly, the Board notes that the Rule precludes attorney assistance with respect to conduct that is illegal under either state or federal law — and the Rule does not distinguish between federal laws that are not being enforced.

The Board decided that a lawyer “cannot deliver legal services to assist a client in the establishment and operation of a state regulated marijuana enterprise that is illegal under federal law.” The prohibited services include, but are not limited to:

  • Completion and filing of marijuana license applications;
  • Negotiations with regulated individuals and businesses;
  • Representation of clients before state regulatory boards responsible for the regulation of medical marijuana;
  • Drafting and negotiating of contracts with vendors for resources or supplies;
  • Drafting of lease agreements for property to be used in the cultivation, processing, or sale of medical marijuana;
  • Representation of clients relating to commercial paper, tax, and zoning issues;
  • Corporate entity formation;
  • Representing a property owner, lessor, supplier or business in transactions with a marijuana regulated entity, if the lawyer knows the transferred property, facilities, goods or supplies will be used to engage in conduct that is illegal under federal law ; and
  • Statutory agent services.

Notwithstanding the above, the Board did conclude that Ohio lawyers may advise clients about the conflict between state and federal law, the consequences of engaging in conduct that is permissible under Ohio law but contrary to federal law, and the likelihood of federal enforcement under the current administration. Ohio lawyers can also counsel and advise about the meaning of Ohio law, and the requirements imposed by Ohio’s medical marijuana law. While a lawyer can advise how the medical marijuana law would be applied to a client’s proposed conduct, the Board’s counsel indicated to me in a conversation that this is essentially limited to a one-time conversation and does not involve ongoing advice.

Ohio lawyers can also represent clients in the following situations:

  • A client charged with violating Ohio’s medical marijuana law;
  • A professional license holder before professional licensing boards;
  • An employee in a wrongful discharge action arising out of the use of  medical marijuana; and
  • Aiding a government client in implementing and administering the state’s medical marijuana program (including state or local governments involving the establishment, operation, or implementation of the regulatory system).

The Board stated that when assisting clients pursuant to Ohio’s medical marijuana program, Ohio lawyers should enter into a written fee agreement that “encompasses a mutual understanding about the exact scope of services the lawyer is ethically and lawfully able to provide under Prof.Cond.R. 1.2(d).”

The practical effect of this opinion and lack of access to an attorney raises some serious problems:

  • Patients will be unable to consult with legal counsel regarding legal possession of medical marijuana pursuant to the “affirmative defense” provision in House Bill 523;
  • Businesses will be unable to draft meaningful contracts or obtain advice regarding tax and regulatory compliance; and
  • Medical marijuana business will effectively be shut out of court when disputes arise, as corporate entities cannot proceed pro se (with the exception of small claims) – this largely leaves “self-help” as the only effective remedy should contractual breaches occur or other disputes arise involving a legal medical marijuana business.

However, the result of the Board’s advisory opinion relating to attorney representation does not bring Ohio into uncharted territory. Following the passage of Amendment 64, the Colorado Bar Association issued a similar opinion, concluding that Colorado lawyers should not engage conduct similar to that referenced by the Ohio Board of Professional Conduct. Soon thereafter, the Colorado Supreme Court added a comment to its version of Rule 1.2 specifying that Colorado lawyers could represent clients in conduct the lawyer reasonably believed was authorized by Amendment 64.

A Lawyer’s Personal Use of Medical Marijuana and Participation in a Medical Marijuana Enterprise

The Board’s analysis involving an Ohio lawyer’s use of medical marijuana applies equally to situations where an Ohio lawyer seeks to own, operate, or lend money to a medical marijuana business. In this context, the Board concluded that the single use of medical marijuana (illegal under federal law) would not violate Rule 8.4(b) but that repeated use might. In addition, the Board concluded that other misconduct relating to the use of medical marijuana, such as “lying to federal investigators or obtaining a prescription for medical marijuana for purposes of resale o providing it to a minor” could implicate Rule 8.4(b).

The Board did clarify, however, that Rule 8.4 (h) — engaging in misconduct that adversely reflects on the lawyer’s fitness to practice law — can be violated even when no other Rule is violated. Interestingly, the Board specifically cites to the case of Disciplinary Counsel v. Bowling, 2010-Ohio-5040, and describes that case as one where a magistrate was charged, but not convicted for marijuana possession under state law and violated Rule 8.4(h). However, in Bowling the parties actually stipulated that the magistrate violated Canon 2 of the former Code of Judicial Conduct by using marijuana occasionally to self-medicate after a stroke, and Disciplinary Counsel dismissed the alleged violation of Rule 8.4(h).

The Board’s caution that “repeated” use of marijuana is troubling in light of the fact that Ohio lawyers with chronic conditions would likely use medical marijuana on a repeated basis to manage the condition. In fact, the Board’s conclusion would allow a lawyer using marijuana once for the purposes of getting high to escape discipline, while a chronically ill lawyer could be disciplined for using medical marijuana under the treatment of a physician. Furthermore, it is not clear how an Ohio lawyer can own or operate a medical marijuana business in accordance with Rule 8.4 — for instance, is owning one business allowable, even though the business engages in repeated transactions?

In any event, the Board’s statement that Rule 8.4(h) can be violated even if all other rules are complied with should caution lawyers from owning or operating a medical marijuana business.

Proposed Changes to the Ohio Rules of Professional Conduct

So where do we go from here? As stated above, the Chief Justice of the Ohio Supreme Court has indicated that the Court is aware of the issues presented by this advisory opinion, and will consider amendments to the Professional Conduct Rules later this month.

Our firm has submitted proposed amendments, and you can read about them by clicking here.

Breaking: Devastating Advisory Opinion from the Ohio Supreme Court Board of Professional Conduct

We’ve previously covered the topic of Ohio attorney professional ethics relating to House Bill 523 and the coming medical marijuana industry in Ohio. Well, today Ohio lawyers received the much-anticipated advisory opinion from the Board of Professional Conduct and it was…. less than encouraging.

I’m on the road coming back from an oral argument in central Ohio (I pulled over at a McDonald’s to write this, don’t worry), so I’ll hit the bullet points here and provide more in-depth analysis at a later time. Suffice it to say that the Board has chosen to follow the lead of the state’s that have drastically limited (if not outright prohibited) lawyer involvement in the marijuana industry.

From the opinion:

Under Prof.Cond.R. 1.2(d), a lawyer cannot deliver legal services to assist a client in the establishment and operation of a state regulated marijuana enterprise that is illegal under federal law. The types of legal services that cannot be provided under the rule include, but are not limited to, the completion and filing of marijuana license applications, negotiations with regulated individuals and businesses, representation of clients before state regulatory boards responsible for the regulation of medical marijuana, the drafting and negotiating of contracts with vendors for resources or supplies, the drafting of lease agreements for property to be used in the cultivation, processing, or sale of medical marijuana, commercial paper, tax, zoning, corporate entity formation, and statutory agent services. See also, Colo. Op. 125 (2013). Similarly, a lawyer cannot represent a property owner, lessor, supplier or business in transactions with a marijuana regulated entity, if the lawyer knows the transferred property, facilities, goods or supplies will be used to engage in conduct that is illegal under federal law. Even though the completion of any of these services or transactions may be permissible under Ohio law, and a lawyer’s assistance can facilitate their completion, the lawyer ultimately would be assisting the client in engaging in conduct that the lawyer knows to be illegal under federal law.

However, there is a range of conduct that the Board has deemed to be permitted:

[The current Rule] permits a lawyer to explain to the client the conflict that currently exists between state and federal law, the consequences of engaging in conduct that is permissible under Ohio law but contrary to federal law, and the likelihood of federal enforcement given the policies of the current administration. A lawyer may counsel and advise a client regarding the scope and general requirements of the Ohio medical marijuana law, the meaning of its provisions, and how the law would be applied to a client’s proposed conduct. A lawyer also can advise a client concerning good faith arguments regarding the validity of the federal or state law and its application to the client’s proposed conduct.

In addition to the permissible range of advice permitted under Prof.Cond.R. 1.2(d), the rule does not preclude a lawyer from representing a client charged with violating the state medical marijuana law, representing a professional license holder before state licensing boards, representing an employee in a wrongful discharge action due to medical marijuana use, or aiding a government client in the implementation and administration of the state’s regulated licensing program. With regard to the latter, lawyers assisting a government client at the state or local level in the establishment, operation, or implementation of the state medical marijuana regulatory system are not advising or assisting the client in conduct that directly violates federal law. The state or a local government is not directly involved in the sale, processing, or dispensing of medical marijuana prohibited by federal law, even though it is arguably enabling the conduct through the issuance of licenses and the maintenance of its regulatory system.

It appears, therefore, that until the Ohio Supreme Court amends the Rules of Professional Conduct Ohio marijuana businesses will be forced to operate without many of the kinds of professional legal advice that lawyers provide to clients in other industries. This result is simply untenable over the long term, given the regulated nature of the industry and the need for competent legal counsel.

I will follow up with an update on the course forward for Ohio lawyers and their clients in the medical marijuana industry.

A link to the full opinion can be found by clicking here.

Join us at the Marijuana Business Daily Crash Course Seminars in Cleveland and Cincinnati!

I‘m excited to announce that I will be one of the featured speakers at the Marijuana Business Daily Crash Course seminars taking place in Cleveland and Cincinnati next month, where I’ll have the opportunity to present and answer questions on the legal issues associated with retail dispensaries, marijuana processors, cultivators, and ancillary businesses in Ohio.

The Cleveland Crash Course seminar will take place on August 17 at the Doubletree Tudor Arms, with the Cincinnati seminar taking place on August 19 at the Kingsgate Marriott. Each seminar will begin at 10:00am and last until 6:00pm, including a networking lunch and networking cocktail reception following the presentations.

I’m honored to present alongside some of the most influential voices in the industry, including Robert Carp, Diane Czarkowski, Troy Dayton, Meg Sanders, Leise Rosman, and Chris Walsh. More information about the Crash Course seminars can be found below. If you register to attend one of the seminars, drop me a line in advance so that we can chat at the lunch or cocktail reception.

You can register for the seminars by clicking here.

You can learn about the featured speakers by clicking here.

You can view the Crash Course agenda by clicking here.

If you are at all interested in getting involved in Ohio’s coming medical marijuana industry, you should absolutely attend one (or both!) of the Crash Course seminars in Cleveland and Cincinnati. I hope to see you there!

More about Marijuana Business Daily:

Founded in 2011, Marijuana Business Daily is the most trusted cannabis industry trade publication. Marijuana Business Daily is independent and non-biased, focusing on bringing top-notch professional news, financial information and research data to the marijuana industry. Marijuana Business Daily’s offerings include the Marijuana Business Conference & Expo, The Marijuana Business Factbook, Marijuana Industry Directory and Marijuana Business Magazine.

Attorney Ethics and Legal Marijuana

With the recent passage of H.B. 523, medical marijuana in Ohio will become a reality this September. Most people are familiar with the fact that the rule-making process will take some time, but Ohio attorneys are presented with a more difficult question: can we even advise medical marijuana businesses? To answer this important question, among others, I recently sought an advisory opinion from the Ohio Supreme Court Board of Professional Conduct Advisory Opinion Committee. The Committee will be considering these questions and the Board will hopefully issue an opinion before the end of the summer.

By way of background, all Ohio lawyers are bound by the Ohio Rules of Professional Conduct. Included within those rules is a prohibition against advising or assisting clients in conduct “the lawyer knows is illegal” (Prof.Cond.R. 1.2(d)) as well a prohibition against committing an “illegal act that reflects adversely on the lawyer’s honesty or trustworthiness” (Prof.Cond.R. 8.4(b)). These provisions are implicated because, while more than half of the country has legalized marijuana in some form, it remains illegal at the federal level under the Controlled Substances Act.

Ohio attempted to address attorney discipline in Section 3796.24(A) of H.B. 523, which provides that a professional license holder “is not subject to professional disciplinary action solely for engaging in professional or occupational activities related to medical marijuana.” The problem, however, is that attorneys are regulated exclusively by the Ohio Supreme Court, so it is not clear that the legislature can prevent the Court from imposing discipline against Ohio lawyers for violating the Rules of Professional Conduct.

I am seeking an opinion on three distinct questions:

  1. Whether an Ohio lawyer may ethically counsel, advise, and represent medical marijuana cultivators, processors, retail dispensaries, testing laboratories, caregivers, and/or patients as each may be licensed or seek to become licensed under Ohio state law;
  2. Whether an Ohio lawyer (or a member of a lawyer’s immediate family) may ethically operate or hold an ownership interest in a medical marijuana cultivator, processor, retail dispensary, and/or testing laboratory as each may be licensed (or may apply for a license) under Ohio state law; and
  3. Whether an Ohio lawyer may ethically use medical marijuana as provided by Ohio state law.

Generally speaking, most states that have considered these issue have come down in favor of attorney representation of legal marijuana businesses, including Arizona, Colorado, New York, Washington (through the King County Bar Association), California (through the San Francisco Bar Association), and Illinois. A minority of states, such as Hawaii, have taken the opposite viewpoint. Connecticut’s opinion on the topic of advice to marijuana businesses offered little guidance, although Connecticut does allow for attorneys to use medical marijuana. In addition, Washington has approved attorney ownership of marijuana businesses and also attorney use of marijuana.

Guidance from the Advisory Opinion Committee has probably never been more imperative than when it comes to medical marijuana. Marijuana businesses not only have to navigate a complicated state regulatory environment, but also have to deal with the ever-changing federal approach to cannabis. Here’s hoping that Ohio lawyers have an advisory opinion sooner rather than later so that our role in this industry can have clarity.

To view my full request for an advisory opinion, click here.

You can also read about the request for an advisory opinion on Cleveland.com by clicking here.

Drugged Driving?

Ohio is one of six states that have legal tests in place to determine if a driver is impaired by marijuana – but what do these tests really tell us? Not much, according to a recent study commissioned by the American Auto Association (AAA), the nation’s largest automobile club. According to their study it is not possible to set a simple blood-test threshold for THC (the chemical responsible for marijuana’s psychological effects). They insist that the tests have no scientific basis at all.

Determining whether someone is impaired by marijuana is far more complex than the simple  tests that have been developed for alcohol. According to AAA’s CEO Marshall Doney, “In the case of marijuana, this approach is flawed and not supported by scientific data.”

Marijuana is not metabolized by the body in the same way as alcohol – there is no science that shows that drivers become impaired when their blood reaches a specific level of THC. It is possible for some drivers to remain unimpaired with relatively high levels of THC in their system. Others drivers with lower levels of THC in their system may be entirely impaired behind the wheel – and this inconsistency seriously discredits any universal THC standards for impairment.

A lot depends on the individual when it comes to marijuana. THC persists in the blood of frequent marijuana users long after use, while it dissipates more rapidly among occasional users. The current tests in place can only tell us if a driver has merely used the drug at some point – the presence of THC’s metabolites can linger in the body weeks after use. This could lead to the inappropriate conviction of drivers who are otherwise operating their vehicle safely. Further, the body processes active THC very quickly, so a driver may very well fall below the legal threshold before a blood test is administered.

Exactly how dangerous is driving under the influence of marijuana? It is about as dangerous as driving with a “noisy child in the back of the car,” according to Mark A. R. Kleiman, an NYU professor and specialist in issues involving drugs and criminal policy. By comparison, driving while using a hands-free cellphone quadruples the risk of an accident.  Kleiman also noted that the average alcohol content in drunk driving cases renders you 15 times more likely to crash your car.

According to AAA – motorists are being convicted of driving under the influence of marijuana based on what seem to be arbitrary state standards that have no connection to whether the driver was actually impaired.

Sources:

http://www.dispatch.com/content/stories/local/2016/05/10/0510-ohios-limit-for-marijuana-driving-isnt-scientific.html

http://norml.org/library/item/marijuana-and-driving-a-review-of-the-scientific-evidence

http://abcnews.go.com/Politics/wireStory/scientific-basis-laws-marijuana-driving-questioned-39001339

 

Ohio’s General Assembly Votes to Legalize Medical Marijuana

Yesterday the Ohio General Assembly completed its work on HB 523 by passing the final version of the bill to legalize medical marijuana in Ohio. The bill is now in front of Governor John Kasich, who has 10 days from passage to act on it. Should Governor Kasich not sign it, the bill would still become law and take effect 90 days after the Governor’s signature (or 90 days after the 10th day if he does not sign, but also does not veto the legislation). When reached for comment, Kasich spokesman Joe Andrews would not confirm that Governor Kasich would sign the bill, and only told Jackie Borchardt with Cleveland.com that “[h]e’s said if we need it and we got a good bill he’d be OK with it[.]” In the past, however, Kasich has signaled support for medical marijuana.

HB 523 allows for patients suffering from a number of conditions to use and possess a 90-day supply of medical cannabis in various forms, but there is a prohibition on smoking cannabis. The list of conditions includes:

  1. HIV/AIDS;
  2. Amyotrophic lateral sclerosis (ALS);
  3. Alzheimer’s disease;
  4. Cancer;
  5. Chronic traumatic encephalopathy (CTE);
  6. Crohn’s disease;
  7. Epilepsy or another seizure disorder;
  8. Fibromyalgia;
  9. Glaucoma;
  10. Hepatitis C;
  11. Inflammatory bowel disease;
  12. Multiple sclerosis;
  13. Pain that is either (a) chronic and severe, or  (b) intractable;
  14. Parkinson’s disease;
  15. Post-traumatic stress disorder;
  16. Sickle cell anemia;
  17. Spinal cord disease or injury;
  18. Tourette’s syndrome;
  19. Traumatic brain injury; and
  20. Ulcerative colitis.

Ohioans can submit petitions to the State Medical Board to include additional conditions later on. The final version passed by the General Assembly does have some differences from the substitute bill offered by Senator Burke during Senate Committee hearings. For example, the Committee modified the definition of eligible “pain” to include that which is either chronic and severe, or intractable — the prior version required pain to be chronic, severe and intractable, which would greatly limit the number of eligible patients. Second, the Committee removed the requirement for pharmacists to be present in dispensaries. Finally, the legislation splits the regulatory responsibility for the medical cannabis industry among three distinct agencies:

  1. The Department of Commerce, which is responsible for regulating cultivators and processors;
  2.  The State Pharmacy Board, which is responsible for regulating dispensaries, along with patient and caregiver registration; and
  3. The State Medical Board, which is responsible for regulating and training physicians to recommend medical cannabis.

The Medical Marijuana Advisory Committee will recommend rules to these three agencies, and Ohio’s medical cannabis industry will be up and running within 2 years of the legislation’s effective date. For the full text of HB 523 as passed by the Ohio Senate, click here. 

To be sure, this is not a perfect bill. It does not go as far as many advocates (including myself) had hoped. Among other things, the list of qualifying conditions is too restrictive, it gives too much unchecked authority to unaccountable political appointees, and the requirement that patients only possess a “90 day supply” of their medicine seems overly burdensome, especially considering patients who will likely have trouble making it out of their homes.

The real test begins once the three regulatory agencies begin writing the regulations. Will they allow innovation, entrepreneurship, and a vibrant industry that will provide safe and reliable access to cannabis for Ohio patients? Or will Ohio be like New York, with a system allowing for only a handful of dispensaries and a small number of registered patients?

It may very well be that the Ohioans for Medical Marijuana ballot initiative provides the best opportunity for Ohio patients to truly benefit from medical cannabis. HB 523 may, as critics argue, simply be too restrictive. But there is no real doubt that HB 523 is a step forward for Ohio patients. If you are somebody who has advocated for safe medical marijuana in Ohio for decades, then rejoice because your tireless efforts have borne fruit. But don’t celebrate too long, because the real fight is just beginning.

Stay tuned for deep dives into HB 523 and the rule making process going forward, as well as the progress for thOhioans for Medical Marijuana ballot initiative.