Protest for the legalization of medical marijuana
Protest for the legalization of medical marijuana ()

The Florida Bar will not discipline lawyers for advising clients seeking to set up medical marijuana businesses under a policy approved by its board of governors.

The new policy recommended by the Bar’s disciplinary procedures committee was offered in response to a growing number of lawyers establishing medical marijuana consulting businesses and seeking guidance.

The Florida Legislature passed a bill in the latest session allowing the distribution and use of marijuana for medical purposes. Florida voters also are expected to approve a ballot initiative in November legalizing medical marijuana following similar initiatives in other states.

Seeking to cash in on the hoped-for industry, dozens of Florida lawyers have launched marijuana-related consulting practices in the last year. Former Miami-Dade prosecutors Julian Stroleny and Christopher Pagan are consultants. Coral Gables lawyer Jeffrey Feiler has been selling medical marijuana franchises for $75,000 through his company, Grass Roots Marijuana Florida Inc.

The board of governors took up the rule change May 23 after the Bar received letters from lawyers concerned they could be prosecuted since marijuana possession still remains illegal under federal law.

Bar associations in Nevada, Arizona, Colorado, Maine and elsewhere have passed rule changes or issued ethics opinions providing a “safe harbor” for lawyers to advise medical marijuana clients.

Plantation attorney Carl Lida, in a letter to Bar president Eugene Pettis, said he has been contacted by prospective clients about setting up medical marijuana businesses and asked the Bar to take up the issue.

“Although Florida has not yet passed any laws concerning the dissemination of medical marijuana, it appears that there is a great likelihood that such a law will pass and many people will want to enter into the industry,” Lida wrote. “It is therefore incumbent upon the Bar to provide them with information that will guide them in conducting such businesses in a legal manner.”

Federal-State Conflict

The National Organization for the Reform of Marijuana Laws also wrote to the Bar, urging officials to advise lawyers on what is fast becoming a new practice area.

“Recognizing the complexity of our marijuana laws and the dire consequences that can befall Floridians if they get it wrong, many Florida attorneys have knowingly chosen to advise Floridians of their rights under Florida’s cannabis laws, the upcoming ballot initiative and medical necessity defense, despite the federal prohibition on marijuana,” the letter said. “We support you in recognizing a rule that allows attorneys to practice law without fear that the sword of Damocles hanging over their heads will drop in the form of an ethics complaint, sanction or disbarment.”

Under current rules, a Bar report said, “If the lawyer actually aided a client in establishing or implementing a business enterprise that violates federal criminal law (even though it complies with state law), the case would likely be given to a grievance committee.”

The rule change states the Bar will not file ethics complaints against members “solely for advising a client regarding the validity, scope and meaning of Florida statutes regarding medical marijuana or for assisting a client in conduct the lawyer reasonably believes is permitted by Florida statutes, regulations, orders and other state or local provisions implementing them, as long as the lawyer also advises the client regarding related federal law and policy.”

Stroleny, whose new clients are establishing marijuana businesses, welcomed the change.

“I am grateful the Florida Bar has cleared the path for those interested in medical marijuana to retain competent legal counsel for their new business venture,” he said. “This is an important step, enhancing the legitimacy of this industry, and ensuring medical marijuana is done safely and in compliance with future regulations. Our clients are also very appreciative.”