110819 NYEO, ETH 1177

• Case Date: November 08, 2019
• Court: New York

ETH 1177 Opinion 1177 New York Ethics Opinion New York State Bar Association Committee on Professional Ethics November 8, 2019          Topic: Counseling clients in illegal conduct; medical marijuana law.          Digest: The Committee reaffirms its conclusion in N.Y. State 1024 (2014) that a lawyer may ethically assist a client in conduct designed to comply with New York’s medical marijuana law.          Rules: 1.2(d).          FACTS          1. In July 2014, New York, following the lead of 22 other states, adopted the Compassionate Care Act (“CCA”), a law permitting and regulating the cultivation, distribution, prescription, and use of marijuana for medical purposes. The CCA enables specially approved organizations such as hospitals and community health centers to dispense medical marijuana to patients who have been certified by a health care provider and who have registered with the state Department of Health, and provides further for the regulation and registration of organizations to manufacture and deliver marijuana for authorized medical uses.          2. Although federal criminal law forbids the possession, distribution, sale, or use of marijuana, the United States Department of Justice (“DOJ”) does not enforce the law against individuals and entities engaged in the cultivation, transportation, delivery, prescription, or use of medical marijuana in accordance with state regulatory law. In 2013, the DOJ issued a memorandum (the “Cole Memo”) restricting federal enforcement of the federal marijuana prohibition when individuals and entities act in accordance with state regulation of medical marijuana.          3. On September 29, 2014, this Committee issued Opinion 1024, which concluded that, “in light of current federal enforcement policy, the N.Y. Rules of Professional Conduct (the “Rules”) permit a lawyer to assist a client in conduct designed to comply with state medical marijuana law, notwithstanding that federal narcotics law prohibits the delivery, sale, possession and use of marijuana and makes no exception for medical marijuana.” Id. ¶ 26. Opinion 1024 said, too, that “[i]f federal enforcement were to...