By Michael McGrory
The Illinois State Bar Association has issued a Professional Conduct Advisory Opinion concluding that Illinois lawyers who counsel medical cannabis industry businesses can do so without running afoul of ethics rules.
In Illinois, as in most states, attorneys are not permitted to counsel a client to engage in, or assist a client in, criminal or fraudulent conduct. The exception to this rule is that lawyers may advise clients about the legal consequences of a proposed course of conduct, and can help clients to determine the validity, scope, meaning, or application of the law. Although medical cannabis has been legalized or decriminalized in many states, it remains criminal to grow and distribute cannabis under federal law. The ISBA thus set out to determine whether an Illinois attorney can ethically offer legal services to a client whose conduct may be expressly legal under state law but illegal under federal law.
The ISBA found that a lawyer’s counsel to a medical marijuana business falls within the exception to the rule. The ISBA looked at the 45-section statute and 270 pages of accompanying rules, and called the medical cannabis industry “a classic example of a business in serious need of legal advice and counsel.” Additionally, given the conflict existing between state and federal laws, as well as the U.S. Department of Justice’s position regarding the prosecution of medical cannabis businesses, the ISBA found that allowing attorneys to counsel clients in this industry would be “far better than forcing such businesses to proceed by guesswork.”
The Opinion separately addressed whether a lawyer can ethically offer services beyond legal counsel, such as negotiations and legal document drafting. The ethics rules, the ISBA said, are supposed to be rules of reason, and it is reasonable to permit attorneys to offer the same services to medical marijuana clients as they offer to other businesses.
The ISBA stressed that its Opinion is advisory only. It should not be construed as legal advice, and it will not protect attorneys who may be targeted by the Illinois Attorney Registration and Disciplinary Commission. Also, lawyers working in this field should “tread carefully,” and emphasize to clients the importance of complying with state law.
Bar associations in several states have addressed this same issue, though some have reached different results. The Connecticut Supreme Court amended its rules to allow an attorney to counsel clients “regarding conduct expressly permitted by Connecticut law,” as long as the attorney also advises about the legal consequences under other applicable law of the proposed course of conduct. The ISBA recommended that the Illinois Supreme Court institute a similar amendment in order to resolve any lingering uncertainty.
As the ISBA recognized, medical cannabis industry businesses operate in a highly-regulated and legally complex environment, and need attorneys to successfully navigate this landscape. This Opinion, even though it is advisory, should be welcomed by those who hope to be a part of the medical cannabis industry as it commences in Illinois as well as their lawyers.