What Lawyers Need To Know
While medical cannabis may have been legalized in the Commonwealth of Pennsylvania, through House Bill SB3 there has not yet been a change to the Pennsylvania state legal ethics rules for Pennsylvania lawyers that governs lawyers who may advise clients in the medical cannabis industry.
Last October, the Pennsylvania and Philadelphia Bar Associations gave opinions that the State Rules of Professional Conduct would have to be amended in order for lawyers to ethically advise clients about the use, sale, and cultivation of marijuana, given its status as a Schedule I controlled substance at the federal level; the use, possession, and transport of which is illegal under the Controlled Substances Act (“CSA”). A month later, in November, the Pennsylvania Bar Association adopted a resolution to amend Rule of Professional Conduct 1.2(d), which presently prohibits attorneys from counseling “a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.” The amendment has been referred to the Disciplinary Board of the Pennsylvania Supreme Court, said a spokesman for the Administrative Office of Pennsylvania Courts. The spokesman said that it was his understanding that the proposed amendments would be published for public comment after SB3 passed.
On May 7, the Disciplinary Board of the Supreme Court of Pennsylvania released Pa.B. Doc. No. 16-779, featuring a proposed amendment to Rule 1.2(d) and a new addition to the rule itself (changes in bold):
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, except as stated in paragraph (e), but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law;
(e) A lawyer may counsel or assist a client regarding conduct expressly permitted by the law of the state where it takes place or has its predominant effect, provided that the lawyer counsels the client about the legal consequences, under other applicable law, of the client’s proposed course of conduct.
The proposed rule will be available for comment up to and including June 3, 2016. It will then be reverted back to the Rules Committee for final recommendation to the Supreme Court. The Rules Committee’s next meeting is set for July.