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Ethics/Professional Responsibility,
State Bar & Bar Associations

Oct. 2, 2018

State Supreme Court finalizes professional conduct guidance for marijuana lawyers

The court approved revisions to Rule 1.2.1, which provides guidance for attorneys advising cannabis industry clients.


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The state Supreme Court have approved final revisions to the new Rules of Professional Conduct to go into effect on Nov. 1. The last rule in question was Rule 1.2.1, which concerns lawyers knowingly advising or assisting clients with violations of federal law if they are in compliance with state law.

The rule, approved Friday, could provide guidance for lawyers in the marijuana industry, currently the subject of conflicts between state and federal law. Certain sales and uses of marijuana are permitted under California law but are illegal under the federal Controlled Substances Act.

"I view the comment as now providing the clarity that we can continue to practice in this space and do so ethically as a California-licensed attorney," said Joshua R. Mandell of Akerman LLP's cannabis practice.

The rule states that attorneys should not counsel clients to engage in or assist a client in conduct that's criminal, fraudulent or a violation of law but can discuss legal consequences of proposed conduct with a client or help determine the validity, meaning or application of a law or rule in "a good faith effort."

The revisions concern Comment 6 of the rule, which addresses conflicts between state and federal law, and make the comment more specific.

According to the comment, a lawyer is permitted "to advise a client regarding the validity, scope and meaning of California laws that might conflict with federal or tribal law" and may assist a client in "drafting or administering, or interpreting or complying with California laws," even if the client's actions violate conflicting federal law.

The state Supreme Court approved a total of 69 new rules on May 10, including Rule 1.2.1, which was adopted pending additional revisions from the State Bar.

The court issued potential revisions to the rule in April. The bar posted two versions of the rule -- the first with the court's exact proposed language and the second with minor modifications -- for a 45-day comment period concluding July 3. The majority of public comments supported the second version.

The court approved this revision Friday.

"This rule provides important guidance to California attorneys who advise clients in areas where state law differs from federal law, including cannabis businesses and immigration issues such as sanctuary cities," said State Bar spokesperson Rebecca Farmer in an email.

University of the Pacific McGeorge School of Law professor Francis J. Mootz said he thinks the approved rule is too narrow in that Comment 6 does not explicitly include all activities a lawyer might be engaged in related to the cannabis industry. The rule does offer more protections than before but could also be concerning to attorneys for what it leaves out, he said.

Nicole Howell Neubert of cannabis law firm Clark Neubert LLP said the specificity in the rule provides helpful guidance and is a step toward normalizing the industry.

"It's not much of a legalization effort if people who are engaged in the business can't have lawyers who advise them," Neubert said.

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Erin Lee

Daily Journal Staff Writer
erin_lee@dailyjournal.com

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