Lawyers with cannabis clients: California’s state bar wants to hear from you—quickly.
Tuesday is the deadline for submitting public comments on two versions of a proposed change to Rule 1.2.1 of the Rules of Professional Conduct. That’s the rule that warns attorneys not to aid a client in breaking the law.
A bar commission charged with reviewing the rules is looking at Comment 6 accompanying Rule 1.2.1. In April, the California Supreme Court, responsible for enacting ethical rules for lawyers, asked the bar to consider adding this comment language:
Paragraph (b) permits a lawyer to advise a client regarding the validity, scope, and meaning of California laws that might conflict with federal or tribal law, and, despite such a conflict, to assist a client in drafting, administering, or complying with California statutes, regulations, orders, and other state or local provisions that execute or apply to those laws. If California law conflicts with federal or tribal law, the lawyer must inform the client about related federal or tribal law and policy (see Rule 1.4), and under certain circumstances may also be required to provide legal advice to the client regarding the conflict (see, e.g., Rule 1.1).
Neither Rule 1.2.1 nor the suggested comment specifically mention marijuana. But the language appears to offer guidance—and protection—for attorneys counseling clients who face a conflict between California and federal laws. Those conflicts could stem from cannabis, immigration or other issues where the governments butt heads.
Going a step further, the bar’s Commission for the Revision of the Rules of Professional Conduct offered a second version of Comment 6:
Paragraph (b) permits a lawyer to advise a client regarding the validity, scope, and meaning of California laws that might conflict with federal or tribal law. In the event of such a conflict, the lawyer may assist a client in drafting, interpreting, administering, or complying with California laws, including statutes, regulations, orders, and other state or local provisions, even if the client’s actions might violate the conflicting federal or tribal law. If California law conflicts with federal or tribal law, the lawyer must inform the client about related federal or tribal law and policy and under certain circumstances may also be required to provide legal advice to the client regarding the conflict (see Rules 1.1 and 1.4).
The small changes in version two were drafted “to clarify” the comment, said Kevin Mohr, a rules commission member and a professor at Western State College of Law. The commission wanted to be sure to legal cover work, such as “interpreting” the law, that goes beyond just advising clients, he said.
“We wanted to clarify that the court added assurance to government lawyers that might be drafting legislation on conflicts with federal law,” Mohr said.
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Both versions of the comment offer more potential protections to cannabis lawyers and others practicing amid state and federal legal conflicts than the current rules. The bar has not in recent years pursued disciplinary charges against lawyers in such fields who act in accordance with state laws and professional guidelines.
Regional bars in Los Angeles and San Francisco have published nonbinding opinions describing how attorneys can ethically represent clients involved with legal marijuana businesses. Many other states where some form of marijuana use is legal have issued their own cannabis-specific rules or ethics opinions.
“Why not have this” new language? Mohr said. He added: The guiding principle was that “lawyers have to be able to assist their clients, to help them solve problems. You can’t just say, ‘Sorry, I can’t help you.’”
The rules commission will compile the comments and send them to the bar’s board of trustees this month for consideration. If approved by the California Supreme Court, the language could be included in a newly revised set of professional rules set to take effect on Nov. 1.
Bar members can choose their favored version and explain their reasoning on the bar’s website. Public comments will be accepted until 5 p.m., Tuesday July 3.