Ohio is in the process of implementing its medical cannabis program created through the legislative process by September 2018, but Board of Professional Conduct of the Supreme Court of Ohio has issued an Opinion that could have a chilling effect on the ability of lawyers to aid in the creation of cannabis businesses.
OPINION 2016-6 Issued August 5, 2016: Ethical Implications for Lawyers under Ohio’s Medical Marijuana Law
CONCLUSION: Federal law currently prohibits the sale, cultivation, processing, or use of marijuana, for any purpose. Prof.Cond.R. 1.2 prohibits a lawyer from counseling or assisting a client to engage in conduct the lawyer knows is illegal under any law. The rule does not contain an exception if the federally prohibited conduct is legal under state law. However, a lawyer may advise a client as to the legality of conduct either permitted under state law or prohibited under federal law, explain the scope and application of the law to the client’s conduct, but a lawyer cannot provide the legal services necessary to establish and operate a medical marijuana enterprise or transact with a medical marijuana business. A lawyer seeking to use medical marijuana or participate in a regulated business under Ohio law is in technical violation of federal law. A lawyer’s personal violation of federal law, under certain circumstances, may adversely reflect on a lawyer’s honesty, trustworthiness, and fitness to practice law in violation of Prof.Cond.R. 8.4(b) or 8.4(h).
Importantly, the Opinion is nonbinding, but this ruling could put Ohio attorneys in a very difficult situation. Most states permit attorneys to aid companies operating legally on a state level, though Hawaii prohibits doing so.
Read Jeremy Pelzer’s “Lawyers can’t help set up new medical marijuana businesses, Ohio Supreme Court board says”: http://www.cleveland.com/open/index.ssf/2016/08/lawyers_cant_help_set_up_new_m.html
