As discussed in our February 14, 2016 blog post, the New Jersey State Bar Association established an ad hoc committee to review the ethical issues raised under New Jersey’s Rules of Professional Conduct (“RPC”) 1.2(d) for an attorney representing a client in connection with the sale, distribution, or use of medical marijuana as authorized under the New Jersey Compassionate Use Medical Marijuana Act (the “NJ Marijuana Act”).
In a notice to the bar released May 19th by Judge Glenn Grant, the acting administrative director of the courts, the Judiciary said the Advisory Committee on Professional Conduct had proposed a change to RPC 1.2 to address this ethical quandary and found that lawyers may provide services to clients seeking to comply with the NJ Marijuana Act while the amendment is under consideration by the New Jersey Supreme Court. The Committee’s slight majority based its decision on public policy encouraging lawyers to provide legal services to businesses navigating the complex regulatory framework of the NJ Marijuana Act.
Despite being vigorously divided, the Committee unanimously agreed that RPC 1.2(d) should be amended to expressly allow lawyers to counsel and assist clients with regard to the NJ Marijuana Act, provided that they also advise their clients about conflicting federal law. More importantly, the Committee further agreed that, given the current uncertainty regarding the proposed amendment, lawyers who assist clients to comply with the NJ Marijuana Act should not face discipline while the Court considers amending RPC 1.2.
The Committee presented the matter to the New Jersey Supreme Court and respectfully requested that the Court adopt an amendment to NJ RPC 1.2(d) to provide:
A lawyer may counsel a client regarding New Jersey’s marijuana laws and assist the client to engage in conduct that the lawyer reasonably believes is authorized by those laws. The lawyer shall also advise the client regarding related federal law and policy.
The Administrative Office of the Courts is accepting comments on the proposed rule change until June 20.
The Committee’s decision to recommend amending RPC 1.2(d) is the right one. Attorneys should be allowed to represent businesses seeking to comply with the NJ Marijuana Act without the possibility of facing ethics charges. However, attorneys would be wise to wait until the New Jersey Supreme Court approves the proposed amendment before explicitly advertising legal services relating to the NJ Marijuana Act. Our firm will continue to provide updates as this situation develops.