Can advising a client about a potential adult-use cannabis business in New Jersey put an attorney in professional jeopardy?
Because cannabis is illegal on the federal level, lawyers in states with medical and/or recreational programs need dispensation.
The New Jersey Rules of Professional Conduct have a carve out for medical marijuana. Rule of Professional Conduct 1.2(d) states: “a lawyer may counsel a client regarding New Jersey’s medical marijuana laws and assist the client to engage in conduct that the lawyer reasonably believes is authorized by those laws. The lawyer shall also advise the client regarding related federal law and policy.”
According to Michael Schaff of Wilentz, Goldman & Spitzer and co-chair of the New Jersey State Bar Association’s Cannabis Law special committee, “This amendment significantly reduces the risk, and mitigates attorneys’ exposure, for New Jersey professional disciplinary consequences resulting from advising New Jersey clients on legal medicinal marijuana matters in New Jersey, but it does not eliminate the risk of charges of professional misconduct brought by another jurisdiction where a lawyer may also be admitted. So, with this amendment, attorneys still risk federal criminal and resulting disciplinary exposure because marijuana, including medical marijuana, is still illegal federally.”
However, that carve out does not apply to recreational marijuana because it is still illegal, according to a spokesperson for New Jersey Courts. The Cannabis Committee hopes a similar safe harbor will be implemented for New Jersey lawyers in the event recreational adult use cannabis is legalized.
What advice does Schaff have for attorneys who have clients asking them questions about the pending recreational market?
“For now we tell attorneys who are advising clients that they should explain to clients the validity, scope, and meaning of the New Jersey statutes and regulations that are currently in place re medicinal marijuana and inform clients about the proposed regulations for adult use cannabis, which have not yet been passed, and if passed, what conduct he/she reasonably believes would be permitted. Also, even though medicinal marijuana is permitted under New Jersey state law, attorneys must still advise the client regarding its illegal status under federal policy and law as a Schedule 1 substance.
“With no safe harbor at this time for New Jersey attorneys in connection with adult use cannabis, firms and attorneys should be wary of the risks present in providing advice on illegal activity at the federal level since, again, federal law classifies all marijuana, including medical marijuana, as an illegal substance.”